US v. Holly Bennett, (4th Cir. 2011)

Status: Not Published

Linked as:

Text

UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

No. 11-6638

UNITED STATES OF AMERICA,

Plaintiff - Appellee,

v.

HOLLY NEIL BENNETT,

Defendant - Appellant.

Appeal from the United States District Court for the Northern

District of West Virginia, at Clarksburg. Irene M. Keeley,

District Judge. (1:08-cr-00078-IMK-JSK-2; 1:10-cv-00005-JMK-

JSK)

Submitted: July 21, 2011 Decided: July 26, 2011

Before NIEMEYER and GREGORY, Circuit Judges, and HAMILTON,

Senior Circuit Judge.

Dismissed by unpublished per curiam opinion.

Holly Neil Bennett, Appellant Pro Se. Shawn Angus Morgan,

Assistant United States Attorney, Clarksburg, West Virginia, for

Appellee.

Unpublished opinions are not binding precedent in this circuit.

PER CURIAM: Holly Neil Bennett seeks to appeal the district court's order accepting the recommendation of the magistrate judge and denying relief on his 28U.S.C.A. § 2255 (West Supp.

2010) 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." 28U.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 Bennett has not made the requisite showing.

Accordingly, we deny Bennett's motion for 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 the court and argument would not aid the decisional process.