David Smith v. US, No. 15-7682 (4th Cir. 2016)
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UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 15-7682 DAVID LEE SMITH, Petitioner – Appellant, v. UNITED STATES OF AMERICA, Respondent - Appellee. Appeal from the United States District Court for the Eastern District of North Carolina, at Raleigh. James C. Dever III, Chief District Judge. (5:15-hc-02128-D) Submitted: January 29, 2016 Decided: February 5, 2016 Before MOTZ, KEENAN, and THACKER, Circuit Judges. Dismissed by unpublished per curiam opinion. David Lee Smith, Appellant Pro Se. Unpublished opinions are not binding precedent in this circuit. PER CURIAM: David Lee Smith seeks to appeal the district court’s order accepting the recommendation of the magistrate judge and denying relief on his 28 U.S.C. § 2254 (2012) petition. 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)(A) (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 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 have independently reviewed the record and conclude that Smith has not made the requisite showing. Accordingly, we deny a certificate of appealability, deny leave to proceed in forma pauperis, and dismiss the appeal. 2 We further deny Smith’s petition for initial hearing en banc, * and motions and supplemental motions for bail or release pending appeal, for summary reversal, for leave to file an additional motion for summary reversal, to stay the mandate, and all other pending motions. legal before We dispense with oral argument because the facts and contentions this court are adequately and argument presented would not in aid the the materials decisional process. DISMISSED * The petition for initial hearing en banc was circulated to the full court. No judge requested a poll under Fed. R. App. P. 35. 3
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