US v. Daniel Gibert, No. 15-6945 (4th Cir. 2015)
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UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 15-6945 UNITED STATES OF AMERICA, Plaintiff - Appellee, v. DANIEL REKUS GIBERT, Defendant - Appellant. Appeal from the United States District Court for the District of South Carolina, at Anderson. Timothy M. Cain, District Judge. (8:09-cr-00438-TMC-1; 8:14-cv-02641-TMC) Submitted: November 17, 2015 Decided: November 19, 2015 Before SHEDD, DUNCAN, and DIAZ, Circuit Judges. Dismissed by unpublished per curiam opinion. Daniel Rekus Gibert, Appellant Pro Se. Maxwell B. Cauthen, III, Assistant United States Attorney, Greenville, South Carolina, for Appellee. Unpublished opinions are not binding precedent in this circuit. PER CURIAM: Daniel Rekus Gibert seeks to appeal the district court’s orders dismissing as untimely his 28 U.S.C. § 2255 (2012) motion and denying his Fed. R. Civ. P. 59(e) motion. not appealable unless a circuit certificate of appealability. A certificate of justice or The orders are judge issues a 28 U.S.C. § 2253(c)(1)(B) (2012). appealability will not issue absent “a substantial showing of the denial of a constitutional right.” 28 U.S.C. § 2253(c)(2) (2012). relief on the demonstrating district merits, that court’s debatable or a When the district court denies prisoner reasonable assessment wrong. satisfies jurists would of Slack this the v. McDaniel, standard find that the claims constitutional 529 by is U.S. 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 Gibert has not made the requisite showing. See Day v. McDonough, 547 U.S. 198, 209-10 (2006) (permitting sua sponte consideration of “court . . . timeliness accord[s] of postconviction the parties 2 fair motion notice provided and an opportunity to present their positions”); see Hill v. Braxton, 277 F.3d 701, 706 (4th Cir. 2002). Accordingly, we deny a certificate of appealability, deny leave to proceed in forma pauperis, and dismiss the appeal. We dispense with oral argument because the facts and legal contentions are adequately presented in the materials before this court and argument would not aid the decisional process. DISMISSED 3
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