Opinion
No. 11-7218
11-23-2011
UNITED STATES OF AMERICA, Plaintiff - Appellee, v. PERCIVAL NORMAN FENTON, Defendant - Appellant.
Percival Norman Fenton, Appellant Pro Se. Grayson A. Hoffman, Assistant United States Attorney, Harrisonburg, Virginia; Rick A. Mountcastle, OFFICE OF THE UNITED STATES ATTORNEY, Roanoke, Virginia, for Appellee.
UNPUBLISHED
Appeal from the United States District Court for the Western District of Virginia, at Harrisonburg. Glen E. Conrad, Chief District Judge. (5:07-cr-00025-GEC-BWC-1; 5:11-cv-80354-GEC)
Before KING, DAVIS, and WYNN, Circuit Judges.
Dismissed by unpublished per curiam opinion.
Percival Norman Fenton, Appellant Pro Se. Grayson A. Hoffman, Assistant United States Attorney, Harrisonburg, Virginia; Rick A. Mountcastle, OFFICE OF THE UNITED STATES ATTORNEY, Roanoke, Virginia, for Appellee.
Unpublished opinions are not binding precedent in this circuit. PER CURIAM:
Percival Norman Fenton seeks to appeal the district court's order dismissing as untimely his 28 U.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." 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 Fenton 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.
DISMISSED