US v. Stacy Berry, No. 13-6120 (4th Cir. 2013)

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UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 13-6120 UNITED STATES OF AMERICA, Plaintiff - Appellee, v. STACY LAMONT BERRY, Defendant - Appellant. Appeal from the United States District Court for the Western District of Virginia, at Charlottesville. Norman K. Moon, Senior District Judge. (3:09-cr-00019-NKM-RSB-1; 3:12-cv-80549NKM-RSB) Submitted: March 28, 2013 Decided: April 2, 2013 Before NIEMEYER, KING, and KEENAN, Circuit Judges. Dismissed by unpublished per curiam opinion. Stacy Lamont Berry, Appellant Pro Se. Ronald Mitchell Huber, Assistant United States Attorney, Charlottesville, Virginia; Joseph D. Platania, OFFICE OF THE UNITED STATES ATTORNEY, Charlottesville, Virginia, for Appellee. Unpublished opinions are not binding precedent in this circuit. PER CURIAM: Stacy court s Berry dismissing order Lamont as (West Supp. 2012) motion. seeks to untimely appeal his 28 the district U.S.C.A. § 2255 The order is not appealable unless a circuit justice or judge issues a certificate of appealability. 28 U.S.C. § 2253(c)(1)(B) (2006). A certificate of appealability will not issue absent a substantial showing of the denial of a constitutional right. (2006). 28 U.S.C. § 2253(c)(2) When the district court denies relief on the merits, a prisoner satisfies this jurists would reasonable standard find by that demonstrating the district that court s assessment of the constitutional claims is debatable or wrong. Slack v. McDaniel, 529 U.S. 473, 484 (2000); see Miller-El v. Cockrell, 537 U.S. 322, 336-38 (2003). denies relief demonstrate on both procedural that the When the district court grounds, dispositive the prisoner procedural must ruling is debatable, and that the motion states a debatable claim of the denial of a constitutional right. Slack, 529 U.S. at 484-85. We have independently reviewed the record and conclude that Berry 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