UNITED STATES v. DERR (2019)

Deshawn Edward Derr seeks to appeal the district court's order denying relief on his 28 U.S.C. § 2255 (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) (2012). 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) (2012). 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, 120 S.Ct. 1595, 146 L.Ed.2d 542 (2000); see Miller-El v. Cockrell, 537 U.S. 322, 336-38, 123 S.Ct. 1029, 154 L.Ed.2d 931 (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, 120 S.Ct. 1595.

We have independently reviewed the record and conclude that Derr has not made the requisite showing. In his § 2255 motion, Derr claimed his 18 U.S.C. § 924(c) (2012) conviction was obtained in violation of Johnson v. United States, ––– U.S. ––––, 135 S. Ct. 2551, 192 L.Ed.2d 569 (2015). The predicate offense for his § 924(c) conviction was Hobbs Act robbery committed on or about June 17, 2011. In light of United States v. Mathis, No. 16-4633, 932 F.3d 242, 266–67, 2019 WL 3437626, at *16 (4th Cir. July 31, 2019) (holding that “Hobbs Act robbery constitutes a crime of violence under the force clause of Section 924(c)”), we conclude that Derr fails to show his § 2255 motion states a valid claim of the denial of a constitutional right.

Accordingly, we deny a certificate of appealability, deny leave to proceed in forma pauperis, deny the motion to appoint counsel, 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

PER CURIAM:

Dismissed by unpublished per curiam opinion. Unpublished opinions are not binding precedent in this circuit.