US v. Shirland Fitzgerald, No. 13-7514 (4th Cir. 2013)

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UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 13-7514 UNITED STATES OF AMERICA, Plaintiff - Appellee, v. SHIRLAND L. FITZGERALD, Defendant - Appellant. Appeal from the United States District Court for the Western District of Virginia, at Danville. Samuel G. Wilson, District Judge. (4:08-cr-00001-SGW-1; 4:13-cv-80625-SGW-RSB) Submitted: November 15, 2013 Decided: November 20, 2013 Before MOTZ, GREGORY, and WYNN, Circuit Judges. Dismissed by unpublished per curiam opinion. Shirland L. Fitzgerald, Appellant Pro Se. Anthony Paul Giorno, Assistant United States Attorney, Roanoke, Virginia; Mitchell Stuart Bober, UNITED STATES DEPARTMENT OF JUSTICE, Washington, DC, for Appellee. Unpublished opinions are not binding precedent in this circuit. PER CURIAM: Shirland L. Fitzgerald seeks to appeal the district court s order treating his Fed. R. Civ. P. 60(b) motion as a successive 28 U.S.C. § 2255 (2012) motion, and dismissing it without prejudice on that basis. unless a circuit appealability. justice or The order is not appealable judge issues a 28 U.S.C. § 2253(c)(1)(B) (2006). certificate of 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. We have independently reviewed the record and conclude that Fitzgerald has not made the requisite showing. Accordingly, we deny a certificate of appealability and dismiss the appeal. We dispense with oral argument because the facts and legal contentions are adequately presented in the materials 2 before this court and argument would not aid the decisional process. DISMISSED 3