United States v. Terrence Cunningham , 469 F. App'x 232 ( 2012 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 11-7597
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
TERRENCE CUNNINGHAM,
Defendant - Appellant.
Appeal from the United States District Court for the Western
District of North Carolina, at Charlotte. Graham C. Mullen,
Senior District Judge. (3:11-cv-00470-GCM; 3:99-cr-00058-FDW-1)
Submitted: March 15, 2012 Decided: March 20, 2012
Before DUNCAN and FLOYD, Circuit Judges, and HAMILTON, Senior
Circuit Judge.
Dismissed by unpublished per curiam opinion.
Terrence Cunningham, Appellant Pro Se. Amy Elizabeth Ray,
Assistant United States Attorney, Asheville, North Carolina, for
Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Terrence Cunningham seeks to appeal the district
court’s order dismissing as untimely his 28 U.S.C.A. § 2255(West Supp. 2011) motion. The order is not appealable unless a
circuit justice or judge issues a certificate of appealability.
28 U.S.C. § 2253(c)(1)(B) (2006). A certificate of
appealability will not issue absent “a substantial showing of
the denial of a constitutional right.” 28 U.S.C. § 2253(c)(2)
(2006). 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 (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 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
Cunningham 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
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contentions are adequately presented in the materials before the
court and argument would not aid the decisional process.
DISMISSED
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