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United States v. Damon Elliott, 12-6919 (2012)

Court: Court of Appeals for the Fourth Circuit Number: 12-6919 Visitors: 23
Filed: Aug. 21, 2012
Latest Update: Mar. 02, 2020
Summary: UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 12-6919 UNITED STATES OF AMERICA, Plaintiff - Appellee, v. DAMON EMANUEL ELLIOTT, Defendant - Appellant. Appeal from the United States District Court for the District of Maryland, at Greenbelt. Peter J. Messitte, Senior District Judge. (8:97-cr-00053-PJM-1) Submitted: August 16, 2012 Decided: August 21, 2012 Before KING and THACKER, Circuit Judges, and HAMILTON, Senior Circuit Judge. Dismissed by unpublished per curiam opinion
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                               UNPUBLISHED

                  UNITED STATES COURT OF APPEALS
                      FOR THE FOURTH CIRCUIT


                               No. 12-6919


UNITED STATES OF AMERICA,

                Plaintiff - Appellee,

          v.

DAMON EMANUEL ELLIOTT,

                Defendant - Appellant.



Appeal from the United States District Court for the District of
Maryland, at Greenbelt.     Peter J. Messitte, Senior District
Judge. (8:97-cr-00053-PJM-1)


Submitted:   August 16, 2012                 Decided:   August 21, 2012


Before KING and THACKER, Circuit Judges, and HAMILTON, Senior
Circuit Judge.


Dismissed by unpublished per curiam opinion.


Damon Emanuel Elliott, Appellant Pro Se.  Stuart A. Berman,
Assistant United States Attorney, Greenbelt, Maryland, for
Appellee.


Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:

              Damon Emanuel Elliott, a federal prisoner, seeks to

appeal the district court’s paperless order denying his motions

for a certificate of appealability in his 28 U.S.C.A. § 2255

(West    Supp.   2012)       proceedings.         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 Elliott has not made the requisite showing.                         It is apparent

from    the   record     that    Elliott’s       motions      for    a   certificate     of

appealability were, in reality, an attempt to file a successive

28 U.S.C.A. § 2255 motion.               Accordingly, we deny a certificate

                                             2
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




                                  3

Source:  CourtListener

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