United States v. Harris , 326 F. App'x 195 ( 2009 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 08-6195
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
TYRONE LAWRENCE HARRIS,
Defendant - Appellant.
Appeal from the United States District Court for the Eastern
District of Virginia, at Norfolk. Walter Dekalb Kelley, Jr.,
District Judge. (2:06-cr-00031-WDK-TEM-01; 2:07-cv-00202-WDK)
Submitted: May 26, 2009 Decided: June 15, 2009
Before TRAXLER, KING, and SHEDD, Circuit Judges.
Affirmed in part; dismissed in part by unpublished per curiam
opinion.
Tyrone Lawrence Harris, Appellant Pro Se. Robert John Krask,
Assistant United States Attorney, Norfolk, Virginia, for
Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Tyrone Lawrence Harris has filed an appeal from the
district court’s order denying relief on his 28 U.S.C.A. § 2255(West Supp. 2008) motion. The order is not appealable unless a
circuit justice or judge issues a certificate of appealability.
28 U.S.C. § 2253(c)(1) (2006).
Because the district court has issued a certificate of
appealability on Harris’s first claim, whether counsel was
ineffective for failing to note an appeal, we have considered
this claim on the merits. Finding no clear error in the
district court’s credibility determinations, we uphold the
court’s finding that counsel was not directed to file a notice
of appeal and did not have a duty to consult with Harris under
Roe v. Flores-Ortega, 528 U.S. 470, 478-80 (2000). We therefore
affirm the district court’s order in part.
We will not issue a certificate of appealability as to
Harris’s remaining claims absent “a substantial showing of the
denial of a constitutional right.” 28 U.S.C. § 2253(c)(2)
(2006). A prisoner satisfies this standard by demonstrating
that reasonable jurists would find that any assessment of the
constitutional claims by the district court is debatable or
wrong and that any dispositive procedural ruling by the district
court is likewise debatable. Miller-El v. Cockrell, 537 U.S.
322, 336-38 (2003); Slack v. McDaniel, 529 U.S. 473, 484 (2000);
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Rose v. Lee, 252 F.3d 676, 683-84 (4th Cir. 2001). We have
independently reviewed the record and conclude that Harris has
not made the requisite showing. Accordingly, we deny a
certificate of appealability as to Harris’s remaining three
claims and dismiss the appeal in part. We deny Harris’s pending
motions for appointment of counsel. We dispense with oral
argument because the facts and legal contentions are adequately
presented in the materials before the court and argument would
not aid the decisional process.
AFFIRMED IN PART;
DISMISSED IN PART
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