US v. Terrell Mallard, No. 13-7188 (4th Cir. 2013)

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UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 13-7188 UNITED STATES OF AMERICA, Plaintiff Appellee, v. TERRELL L. MALLARD, a/k/a Terrell Mailard, Defendant - Appellant. Appeal from the United States District Court for the District of South Carolina, at Charleston. Patrick Michael Duffy, Senior District Judge. (2:09-cr-00461-PMD-1; 2:12-cv-00718-PMD) Submitted: December 16, 2013 Decided: December 23, 2013 Before DUNCAN and AGEE, Circuit Judges, and HAMILTON, Senior Circuit Judge. Dismissed by unpublished per curiam opinion. Terrell L. Mallard, Appellant Pro Se. Matthew J. Modica, Assistant United States Attorney, Charleston, South Carolina, for Appellee. Unpublished opinions are not binding precedent in this circuit. PER CURIAM: Terrell court s order L. Mallard denying his seeks Fed. R. to appeal Civ. P. the 60(b) district motion for reconsideration * of the district court s order denying relief on his 28 U.S.C.A. § 2255 (West Supp. 2013) motion. not appealable unless a circuit certificate of appealability. A certificate of justice or The order is 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 note that the motion was not a second or successive § 2255 motion, but instead a true Rule 60(b) motion. Gonzalez v. Crosby, 545 U.S. 524, 530-32 (2005); United States v. Winestock, 340 F.3d 200, 206-08 (4th Cir. 2003). 2 We have independently reviewed the record and conclude that Mallard has not made the requisite showing. Accordingly, we deny a certificate of appealability and dismiss the appeal. We dispense contentions with are oral argument adequately because presented in the facts and the materials legal before this court and argument would not aid the decisional process. DISMISSED 3