US v. Derrick Ussery, Sr., No. 13-7181 (4th Cir. 2014)
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UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 13-7181 UNITED STATES OF AMERICA, Plaintiff Appellee, v. DERRICK KEITH USSERY, SR., a/k/a Boogaloo, Defendant - Appellant. Appeal from the United States District Court for the Eastern District of North Carolina, at Greenville. Malcolm J. Howard, Senior District Judge. (4:10-cr-00030-H-1; 4:12-cv-00175-H) Submitted: January 31, 2014 Decided: February 20, 2014 Before NIEMEYER, KING, and KEENAN, Circuit Judges. Dismissed by unpublished per curiam opinion. Derrick Keith Ussery, Sr., Appellant Pro Se. Jennifer P. May-Parker, Evan Rikhye, Assistant United States Attorneys, Joshua Bryan Royster, OFFICE OF THE UNITED STATES ATTORNEY, Raleigh, North Carolina, for Appellee. Unpublished opinions are not binding precedent in this circuit. PER CURIAM: Derrick K. Ussery, Sr., seeks to appeal the district court s orders denying relief on his 28 U.S.C. § 2255 (2012) motion and his Fed. R. Civ. P. 60(b) motion for reconsideration. The orders are not appealable unless a circuit justice or judge issues a certificate § 2253(c)(1)(B) (2006). issue absent a of appealability. U.S.C. A certificate of appealability will not substantial constitutional right. 28 showing of the denial 28 U.S.C. § 2253(c)(2) (2006). of a When the district court denies relief on the merits, a prisoner satisfies this standard by demonstrating that reasonable jurists would find that the district court s assessment of the constitutional claims is debatable or wrong. Slack v. McDaniel, 529 U.S. 473, 484 Cockrell, (2000); (2003). see Miller-El v. 537 U.S. 322, 336-38 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 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 Ussery has not made the requisite showing. deny a certificate of appealability, deny as Accordingly, we moot Ussery s motion to place his case in abeyance pending our decision in Miller v. United States, 735 F.3d 141 (4th Cir. as moot, and 2 dismiss the appeal. facts and materials legal before We dispense with oral argument because the contentions are adequately this and argument court presented would not in the aid the decisional process. DISMISSED 3
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