United States v. Earnest Baxter , 536 F. App'x 382 ( 2013 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 13-6154
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
EARNEST ROBERT BAXTER,
Defendant - Appellant.
Appeal from the United States District Court for the Western
District of Virginia, at Roanoke. Samuel G. Wilson, District
Judge. (7:09-cr-00046-SGW-RSB-1; 7:12-cv-80482-SGW-RSB)
Submitted: July 25, 2013 Decided: July 31, 2013
Before KING, DAVIS, and KEENAN, Circuit Judges.
Dismissed by unpublished per curiam opinion.
Earnest Robert Baxter, Appellant Pro Se. Ronald Andrew
Bassford, Craig Jon Jacobsen, I, Assistant United States
Attorneys, Roanoke, Virginia, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Earnest Robert Baxter seeks to appeal the district
court’s orders denying relief on 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
debatable, and that the motion states a debatable claim of the
denial of a constitutional right. Slack, 529 U.S. at 484-85.
*
Baxter also appeals the district court’s post-judgment
order denying a motion to amend his § 2255 motion. Although we
have jurisdiction to review the order, see Smith v. Barry, 502
U.S. 244, 245 (1992), we conclude that the district court did
not abuse its discretion in denying the motion. See Equal
Rights Ctr. v. Niles Bolton Assocs., 602 F.3d 597, 603 (4th Cir.
2010) (standard of review).
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We have independently reviewed the record and conclude
that Baxter has not made the requisite showing. Accordingly, we
deny a certificate of appealability, deny as moot Baxter’s
motion to place case in abeyance, 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
3