US v. Floyd Junior Powell, No. 13-6515 (4th Cir. 2013)
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UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 13-6515 UNITED STATES OF AMERICA, Plaintiff - Appellee, v. FLOYD JUNIOR POWELL, a/k/a Dick, Defendant - Appellant. Appeal from the United States District Court for the Western District of North Carolina, at Statesville. Robert J. Conrad, Jr., Chief District Judge. (5:99-cr-00012-RLV-6; 5:12-cv-00108RJC) Submitted: May 8, 2013 Decided: May 24, 2013 Before NIEMEYER, KING, and DUNCAN, Circuit Judges. Dismissed by unpublished per curiam opinion. Floyd Junior Powell, Appellant Pro Se. William A. Brafford, Assistant United States Attorney, Charlotte, North Carolina; Amy Elizabeth Ray, Assistant United States Attorney, Asheville, North Carolina; Adam Christopher Morris, Craig Darren Randall, OFFICE OF THE UNITED STATES ATTORNEY, Charlotte, North Carolina, for Appellee. Unpublished opinions are not binding precedent in this circuit. PER CURIAM: Floyd Junior Powell seeks to appeal the district court s order treating his motion for relief under 28 U.S.C. § 1651 (2006) 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. Slack satisfies jurists this would of the v. McDaniel, 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 Powell has not made the requisite showing. 2 Accordingly, we deny a certificate of appealability and dismiss the appeal. We dispense with oral argument because the facts and legal before contentions this court are adequately and argument presented would not in aid the the materials decisional process. DISMISSED 3
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