US v. Damian Murphy, (4th Cir. 2011)

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UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

No. 11-6382

UNITED STATES OF AMERICA,

Plaintiff - Appellee,

v.

DAMIAN ANTONIO MURPHY,

Defendant - Appellant.

Appeal from the United States District Court for the Western

District of Virginia, at Abingdon. James P. Jones, District

Judge. (1:06-cr-00062-jpj-1; 1:10-cv-80236-jpj-mfu)

Submitted: September 15, 2011 Decided: October 12, 2011

Before MOTZ and KING, Circuit Judges, and HAMILTON, Senior

Circuit Judge.

Dismissed by unpublished per curiam opinion.

Damian Antonio Murphy, Appellant Pro Se. Jennifer R. Bockhorst,

Assistant United States Attorney, Abingdon, Virginia, for

Appellee.

Unpublished opinions are not binding precedent in this circuit.

PER CURIAM: Damian Antonio Murphy seeks to appeal the district court's orders denying relief on his 28U.S.C.A. § 2255 (West Supp. 2011) motion and denying reconsideration. The orders are not appealable unless a circuit justice or judge issues a certificate of appealability. 28U.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 Murphy has not made the requisite showing.

Accordingly, we deny Murphy'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.