UNITED STATES of America, Plaintiff - Appellee, v. Lennell DYCHES, Defendant - Appellant.
Decided: April 21, 2020
Before GREGORY, Chief Judge, and WYNN and DIAZ, Circuit Judges.
Lennell Dyches, Appellant Pro Se.
Lennell Dyches seeks to appeal the district court's order construing his motion purporting to seek relief under the First Step Act of 2018 (“the Act”), Pub. L. No. 115-391, 132 Stat. 5194, as a 28 U.S.C. § 2255 (2018) motion and dismissing it as successive and unauthorized. Dyches has also filed a motion asking that we authorize the district court to afford him relief under the Act. The district court's dismissal order is not appealable unless a circuit justice or judge issues a certificate of appealability. See 28 U.S.C. § 2253(c)(1)(B) (2018). 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, as here, 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 Dyches has not made the requisite showing. Accordingly, we deny a certificate of appealability and dismiss the appeal. We deny Dyches’ motion to authorize the district court for relief under the Act. 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Dismissed by unpublished per curiam opinion.
Unpublished opinions are not binding precedent in this circuit.
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