United States v. George Davis , 545 F. App'x 228 ( 2013 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 13-7129
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
GEORGE WILLIE DAVIS,
Defendant - Appellant.
Appeal from the United States District Court for the Eastern
District of Virginia, at Newport News. Raymond A. Jackson,
District Judge. (4:08-cr-00133-RAJ-TEM-1; 4:13-cv-00090-RAJ)
Submitted: October 23, 2013 Decided: November 5, 2013
Before DUNCAN, AGEE, and WYNN, Circuit Judges.
Dismissed by unpublished per curiam opinion.
George Willie Davis, Appellant Pro Se. Howard Jacob Zlotnick,
Assistant United States Attorney, Newport News, Virginia, for
Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
George Willie Davis seeks to appeal the district
court’s order dismissing as untimely * his 28 U.S.C.A. § 2255
(West Supp. 2013) 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
*
The district court’s order dismissed Davis’ § 2255 motion
for failure to obtain authorization from this court to file a
successive motion pursuant to 28 U.S.C. § 2244 (2006), or, in
the alternative, as untimely. Although we denied Davis’ § 2244
motion on December 14, 2012, in hindsight, our order should have
clarified that the motion was “denied as unnecessary” on the
ground that Davis had not filed an initial § 2255 motion.
Because we conclude that Davis’ motion before the district court
was not successive, we consider here only the district court’s
alternative finding that Davis’ § 2255 motion was untimely
filed.
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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 Davis 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
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