US v. Marco Cherry, Jr., No. 14-7154 (4th Cir. 2014)

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UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 14-7154 UNITED STATES OF AMERICA, Plaintiff - Appellee, v. MARCO ANTRIONE CHERRY, JR., a/k/a Marco Antrione Cherry, Defendant - Appellant. Appeal from the United States District Court for the Eastern District of Virginia, at Norfolk. Robert G. Doumar, Senior District Judge. (2:11-cr-00071-RGD-FBS-1; 2:14-cv-00283-RGD) Submitted: December 18, 2014 Decided: December 23, 2014 Before SHEDD, WYNN, and THACKER, Circuit Judges. Dismissed by unpublished per curiam opinion. Marco Antrione Cherry, Jr., Appellant Pro Se. Sherrie Scott Capotosto, Assistant United States Attorney, Norfolk, Virginia, for Appellee. Unpublished opinions are not binding precedent in this circuit. PER CURIAM: Marco Antrione Cherry, Jr., seeks to appeal the district court’s orders denying relief on his 28 U.S.C. § 2255 (2012) motion, and denying his Fed. R. Civ. P. 59(e) motion. The orders are not appealable unless a circuit justice or judge issues a certificate § 2253(c)(1)(B) (2012). 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) (2012). 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 Cherry has not made the requisite showing. Accordingly, we deny a certificate of appealability and dismiss the appeal. dispense with oral argument because 2 the facts and We legal contentions are adequately presented in the materials before this court and argument would not aid the decisional process. DISMISSED 3