US v. David Scates, No. 12-8063 (4th Cir. 2013)

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UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 12-8063 UNITED STATES OF AMERICA, Plaintiff - Appellee, v. DAVID MICHAEL SCATES, Defendant - Appellant. Appeal from the United States District Court for the Eastern District of Virginia, at Richmond. Robert E. Payne, Senior District Judge. (3:98-cr-00087-REP-1; 3:12-cv-00761-REP) Submitted: February 21, 2013 Before AGEE and Circuit Judge. DAVIS, Circuit Decided: Judges, and February 26, 2013 HAMILTON, Senior Dismissed by unpublished per curiam opinion. David Michael Scates, Appellant Pro Se. Stephen Wiley Miller, Assistant United States Attorney, Noelle Dalrymple, OFFICE OF THE UNITED STATES ATTORNEY, Richmond, Virginia, for Appellee. Unpublished opinions are not binding precedent in this circuit. PER CURIAM: David court s order Michael Scates construing seeks his to Motion appeal district Correct to the Criminal Judgment as a successive 28 U.S.C.A. § 2255 (West Supp. 2012) motion, and dismissing it on that basis. appealable unless a circuit certificate of appealability. A certificate of justice The order is not or judge issues a 28 U.S.C. § 2253(c)(1)(B) (2006). appealability will not issue absent a substantial showing of the denial of a constitutional right. 28 U.S.C. § 2253(c)(2) (2006). relief on the demonstrating district merits, that court s debatable or a When the district court denies prisoner reasonable assessment wrong. satisfies jurists would of the v. McDaniel, Slack this standard find U.S. that the claims constitutional 529 by is 473, 484 (2000); see Miller-El v. Cockrell, 537 U.S. 322, 336-38 (2003). When the district court denies relief on procedural grounds, the prisoner must demonstrate both that the dispositive procedural ruling is debatable, and that the motion states claim of the denial of a constitutional right. a debatable Slack, 529 U.S. at 484-85. We have independently reviewed the record and conclude that Scates has not made the requisite showing. Accordingly, we deny a certificate of appealability and dismiss the appeal. dispense with oral argument because 2 the facts and We legal contentions are adequately presented in the materials before this court and argument would not aid the decisional process. DISMISSED 3