Summary
noting that Carachuri-Rosendo and Simmons "do not apply retroactively to cases on collateral review"
Summary of this case from United States v. HemingwayOpinion
No. 12-7489
01-24-2013
UNITED STATES OF AMERICA, Plaintiff - Appellee, v. GIDEON X. MELVIN, Defendant - Appellant.
Gideon X. Melvin, Appellant Pro Se. Jennifer P. May-Parker, Assistant United States Attorney, Raleigh, North Carolina, for Appellee
UNPUBLISHED
Appeal from the United States District Court for the Eastern District of North Carolina, at Wilmington. James C. Fox, Senior District Judge. (7:00-cr-00110-F-1; 7:12-cv-00149-F) Before WILKINSON, NIEMEYER, and THACKER, Circuit Judges. Dismissed by unpublished per curiam opinion. Gideon X. Melvin, Appellant Pro Se. Jennifer P. May-Parker, Assistant United States Attorney, Raleigh, North Carolina, for Appellee. Unpublished opinions are not binding precedent in this circuit. PER CURIAM:
Gideon X. Melvin seeks to appeal the district court's order denying relief on his 28 U.S.C.A. § 2255 (West Supp. 2012) 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." 28 U.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 Melvin has not made the requisite showing. See United States v. Powell, 649 F.3d 554 (4th Cir. 2012) (holding that Carachuri-Rosendo v. Holder, 130 S. Ct. 2577 (2010), and United States v. Simmons, 649 F.3d 237, 241-45 (4th Cir. 2011), do not apply retroactively to cases on collateral review). 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 this court and argument would not aid the decisional process.
DISMISSED