US v. Earnest Baxter, No. 13-6154 (4th Cir. 2013)
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UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 13-6154 UNITED STATES OF AMERICA, Plaintiff - Appellee, v. EARNEST ROBERT BAXTER, Defendant - Appellant. Appeal from the United States District Court for the Western District of Virginia, at Roanoke. Samuel G. Wilson, District Judge. (7:09-cr-00046-SGW-RSB-1; 7:12-cv-80482-SGW-RSB) Submitted: July 25, 2013 Decided: July 31, 2013 Before KING, DAVIS, and KEENAN, Circuit Judges. Dismissed by unpublished per curiam opinion. Earnest Robert Baxter, Appellant Pro Se. Bassford, Craig Jon Jacobsen, I, Assistant Attorneys, Roanoke, Virginia, for Appellee. Ronald United Andrew States Unpublished opinions are not binding precedent in this circuit. PER CURIAM: Earnest Robert Baxter seeks to appeal the district court s orders denying relief on his 28 U.S.C.A. § 2255 (West Supp. 2013) motion. * 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 both on procedural that the When the district court grounds, dispositive the prisoner procedural ruling must is debatable, and that the motion states a debatable claim of the denial of a constitutional right. * Slack, 529 U.S. at 484-85. Baxter also appeals the district court s post-judgment order denying a motion to amend his § 2255 motion. Although we have jurisdiction to review the order, see Smith v. Barry, 502 U.S. 244, 245 (1992), we conclude that the district court did not abuse its discretion in denying the motion. See Equal Rights Ctr. v. Niles Bolton Assocs., 602 F.3d 597, 603 (4th Cir. 2010) (standard of review). 2 We have independently reviewed the record and conclude that Baxter has not made the requisite showing. deny a certificate of appealability, deny Accordingly, we as moot Baxter s motion to place case in abeyance, and dismiss the appeal. dispense with contentions are oral argument adequately because presented in the the facts We and legal materials before this court and argument would not aid the decisional process. DISMISSED 3
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