United States v. Howard Shmuckler , 615 F. App'x 148 ( 2015 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 15-6186
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
HOWARD R. SHMUCKLER,
Defendant - Appellant.
Appeal from the United States District Court for the Eastern
District of Virginia, at Alexandria. Leonie M. Brinkema,
District Judge. (1:11-cr-00344-LMB-1)
Submitted: August 18, 2015 Decided: September 3, 2015
Before KING and FLOYD, Circuit Judges, and DAVIS, Senior Circuit
Judge.
Dismissed in part; affirmed in part by unpublished per curiam
opinion.
Howard R. Shmuckler, Appellant Pro Se. Uzo Enyinnaya Asonye,
Assistant United States Attorney, Alexandria, Virginia, for
Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Howard R. Shmuckler seeks to appeal the district court’s
orders denying relief on his 28 U.S.C. § 2255 (2012) motion and
dismissing his Fed. R. Civ. P. 60(b) motion as an unauthorized
§ 2255 motion.
The order denying § 2255 relief is not appealable unless a
circuit justice or judge issues a certificate of appealability.
28 U.S.C. § 2253(c)(1)(B) (2012). 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)
(2012). 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
Shmuckler has not made the requisite showing. Accordingly, we
deny a certificate of appealability and dismiss the appeal in
part. We affirm the portion of the appeal pertaining to the
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district court’s dismissal of Shmuckler’s Rule 60(b) motion for
the reasons stated by the district court. United States v.
Shmuckler, No. 1:11-cr-00344-LMB-1 (E.D. Va. filed Jan. 26,
2015; entered Jan. 27, 2015); see United States v. McRae, ___
F.3d ___, 2015 WL 4190665 (4th Cir. July 13, 2015) (holding that
movant need not obtain a certificate of appealability to appeal
district court’s dismissal of a Rule 60(b) motion that court
construed as a successive habeas motion). 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 IN PART;
AFFIRMED IN PART
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