US v. Jonathan Giannone, (4th Cir. 2011)

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UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

No. 11-6577

UNITED STATES OF AMERICA,

Plaintiff -- Appellee,

v.

JONATHAN GIANNONE,

Defendant -- Appellant.

Appeal from the United States District for District of South

Carolina, at Columbia. Cameron McGowan Currie, District Judge.

(3:06-cv-01011-CMC-1; 3:10-cv-70256-CMC)

Submitted: October 25, 2011 Decided: November 14, 2011

Before NIEMEYER, GREGORY, and AGEE, Circuit Judges.

Dismissed by unpublished per curiam opinion.

Jonathan Giannone, Appellant Pro Se. Dean A. Eichelberger,

Assistant United States Attorney, Columbia, South Carolina, for

Appellee.

Unpublished opinions are not binding precedent in this circuit.

PER CURIAM: Jonathan Giannone seeks to appeal the district court's order denying relief on his 28U.S.C.A. § 2255 (West Supp. 2011) 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 Giannone 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 the court and argument would not aid the decisional process.