United States v. Andrew Rushing ( 2021 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 21-6048
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
ANDREW TROY RUSHING,
Defendant - Appellant.
Appeal from the United States District Court for the Western District of North Carolina,
at Charlotte. Max O. Cogburn, Jr., District Judge. (3:18-cr-00062-MOC-DSC-1; 3:19-
cv-00598-MOC)
Submitted: June 24, 2021 Decided: June 29, 2021
Before KING and THACKER, Circuit Judges, and TRAXLER, Senior Circuit Judge.
Dismissed by unpublished per curiam opinion.
Andrew Troy Rushing, Appellant Pro Se.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Andrew Troy Rushing seeks to appeal the district court’s order denying relief on
his 28 U.S.C. § 2255 motion. The order is not appealable unless a circuit justice or judge
issues a certificate of appealability. See 28 U.S.C. § 2253(c)(1)(B). 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). When the district court denies relief on the merits, a
prisoner satisfies this standard by demonstrating that reasonable jurists could find the
district court’s assessment of the constitutional claims debatable or wrong. See Buck v.
Davis, 137 S. Ct. 759, 773-74 (2017). 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. Gonzalez v. Thaler, 565 U.S. 134, 140-41 (2012) (citing Slack v. McDaniel, 529
U.S. 473, 484 (2000)).
We have independently reviewed the record and conclude that Rushing 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
contentions are adequately presented in the materials before this court and argument
would not aid the decisional process.
DISMISSED
2