United States v. Shirland Fitzgerald , 546 F. App'x 244 ( 2013 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 13-7514
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
SHIRLAND L. FITZGERALD,
Defendant - Appellant.
Appeal from the United States District Court for the Western
District of Virginia, at Danville. Samuel G. Wilson, District
Judge. (4:08-cr-00001-SGW-1; 4:13-cv-80625-SGW-RSB)
Submitted: November 15, 2013 Decided: November 20, 2013
Before MOTZ, GREGORY, and WYNN, Circuit Judges.
Dismissed by unpublished per curiam opinion.
Shirland L. Fitzgerald, Appellant Pro Se. Anthony Paul Giorno,
Assistant United States Attorney, Roanoke, Virginia; Mitchell
Stuart Bober, UNITED STATES DEPARTMENT OF JUSTICE, Washington,
DC, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Shirland L. Fitzgerald seeks to appeal the district
court’s order treating his Fed. R. Civ. P. 60(b) motion as a
successive 28 U.S.C. § 2255 (2012) motion, and dismissing it
without prejudice on that basis. 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 Fitzgerald 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
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before this court and argument would not aid the decisional
process.
DISMISSED
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