US v. Damon Elliott, No. 15-7168 (4th Cir. 2015)
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UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 15-7168 UNITED STATES OF AMERICA, Plaintiff - Appellee, v. DAMON EMANUEL ELLIOTT, Defendant - Appellant. Appeal from the United States District Court for the District of Maryland, at Greenbelt. Peter J. Messitte, Senior District Judge. (8:97-cr-00053-PJM-1; 8:15-cv-01892-PJM) Submitted: October 15, 2015 Decided: October 20, 2015 Before WILKINSON, AGEE, and HARRIS, Circuit Judges. Dismissed by unpublished per curiam opinion. Damon Emanuel Elliott, Appellant Pro Se. Lindsay Eyler Kaplan, Assistant United States Attorney, Greenbelt, Maryland, for Appellee. Unpublished opinions are not binding precedent in this circuit. PER CURIAM: Damon Emanuel Elliott seeks to appeal the district court’s order construing his “actual innocence” motion as a successive 28 U.S.C. § 2255 (2012) motion, and dismissing it on that basis. The order is 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 Elliott has not made the requisite showing. Accordingly, we deny a certificate of appealability, deny Elliott’s motion for the appointment of counsel, and dismiss the appeal. with oral argument because 2 the facts We dispense 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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