US v. Hakim Rashid, No. 13-6970 (4th Cir. 2013)

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UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 13-6970 UNITED STATES OF AMERICA, Plaintiff - Appellee, v. HAKIM ABDULAH RASHID, a/k/a Rodney Buchanan, Defendant - Appellant. Appeal from the United States District Court for the District of South Carolina, at Florence. R. Bryan Harwell, District Judge. (4:10-cr-00941-RBH-1; 4:13-cv-01298-RBH) Submitted: October 17, 2013 Decided: November 19, 2013 Before AGEE, DAVIS, and KEENAN, Circuit Judges. Dismissed by unpublished per curiam opinion. Hakim Abdulah Rashid, Appellant Pro Se. Alfred William Walker Bethea, Jr., Assistant United States Attorney, Florence, South Carolina, for Appellee. Unpublished opinions are not binding precedent in this circuit. PER CURIAM: Hakim Abdulah Rashid seeks to appeal the district court s order dismissing without prejudice as premature his 28 U.S.C.A. § 2255 (West Supp. 2013) motion. 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 Rashid has not made the requisite showing. Although the district court erroneously concluded that it lacked jurisdiction to consider Rashid s § 2255 motion, see United States v. Prows, 448 F.3d 1223, 1228-29 (10th Cir. 2006) (collecting cases), the 2 district court correctly found, in the alternative, that the resolution of Rashid s § 2255 motion was premature due to the pendency § 2255 of Rashid s motion now Accordingly, we direct that deny a appeal. his Rashid appeal direct certificate may has of refile concluded. appealability, deny Rashid s motion to appoint counsel, and dismiss the appeal. dispense with contentions are oral argument adequately because presented in the the facts his We and legal materials before this court and argument would not aid the decisional process. DISMISSED 3