UNITED STATES v. NELSON (2020)

Albert Shaw Nelson seeks to appeal the district court's order denying his Fed. R. Civ. P. 60(b)(4), (6) motions for relief from the district court's prior order denying relief on his 28 U.S.C. § 2255 (2018) motion, denying his Fed. R. Civ. P. 60(d)(3) motion, and denying his motion to compel the Government to supplement or correct its disclosures or responses pursuant to Fed. R. Civ. P. 26(e).

The denial of Nelson's Rule 60(b) motions is not appealable unless a circuit justice or judge issues a certificate of appealability. 28 U.S.C. § 2253(c)(1)(B) (2018). See generally United States v. McRae, 793 F.3d 392, 400 & n.7 (4th Cir. 2015). 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) (2018). When the district court denies relief on the merits, a prisoner satisfies this standard by demonstrating that reasonable jurists would find the district court's assessment of the constitutional claims debatable or wrong. See Buck v. Davis, ––– U.S. ––––, 137 S. Ct. 759, 773-74, 197 L.Ed.2d 1 (2017). 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. Gonzalez v. Thaler, 565 U.S. 134, 140-41, 132 S.Ct. 641, 181 L.Ed.2d 619 (2012) (citing Slack v. McDaniel, 529 U.S. 473, 484, 120 S.Ct. 1595, 146 L.Ed.2d 542 (2000)).

We have independently reviewed the record and conclude that Nelson has not made the requisite showing. Accordingly, we deny a certificate of appealability and dismiss the appeal in part with respect to the denial of Nelson's Rule 60(b) motions. In addition, upon review, we affirm the denial of Nelson's remaining post-judgment motions for the reasons stated by the district court. United States v. Nelson, No. 5:95-cr-00333-CMC-5 (D.S.C. May 15, 2019). We grant Nelson's motion to supplement his informal brief and 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 IN PART, AFFIRMED IN PART

PER CURIAM:

Dismissed in part and affirmed in part by unpublished per curiam opinion. Unpublished opinions are not binding precedent in this circuit.