UNITED STATES v. SUMMERVILLE (2020)

Kedrio Lekeis Summerville seeks to appeal the district court's order denying relief on his 28 U.S.C. § 2255 motion.^* The order is not appealable unless a circuit justice or judge issues a certificate of appealability. See 28 U.S.C. § 2253(c)(1)(B). 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). When the district court denies relief on the merits, a prisoner satisfies this standard by demonstrating that reasonable jurists could 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 Summerville 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 this court and argument would not aid the decisional process.

DISMISSED

FOOTNOTES

FOOTNOTE.   We previously remanded this case to the district court for the limited purpose of enabling the court to determine whether Summerville had shown excusable neglect or good cause warranting an extension of the time to appeal. See United States v. Summerville, 767 F. App'x 529 (4th Cir. 2019) (No. 18-7182). On remand, the district court granted Summerville's motion for extension of time to file a notice of appeal. Summerville's appeal is therefore deemed timely filed.

PER CURIAM:

Dismissed by unpublished per curiam opinion. Unpublished opinions are not binding precedent in this circuit.