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  • United States v. Powell, 4th Cir. (2004)

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    The United States Court of Appeals for the Fourth Circuit dismissed James Devon Powell's appeal of a district court's denial of his motion for relief under 28 U.S.C. § 2255. An appeal from a § 2255 proceeding requires a certificate of appealability, which will only be granted if reasonable jurists could debate whether the petitioner's constitutional claims have merit or the district court's procedural rulings were debatable or wrong. The court independently reviewed the record and found that Powell did not make the required showing to justify issuing a certificate of appealability. Therefore, the court dismissed Powell's appeal.

    Original Description:

    Filed: 2004-12-29 Precedential Status: Non-Precedential Docket: 04-7145

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    The United States Court of Appeals for the Fourth Circuit dismissed James Devon Powell's appeal of a district court's denial of his motion for relief under 28 U.S.C. § 2255. An appeal from a § 2255 proceeding requires a certificate of appealability, which will only be granted if reasonable jurists could debate whether the petitioner's constitutional claims have merit or the district court's procedural rulings were debatable or wrong. The court independently reviewed the record and found that Powell did not make the required showing to justify issuing a certificate of appealability. Therefore, the court dismissed Powell's appeal.

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    Public Domain
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    1 views2 pages

    United States v. Powell, 4th Cir. (2004)

    Uploaded by

    Scribd Government Docs
    The United States Court of Appeals for the Fourth Circuit dismissed James Devon Powell's appeal of a district court's denial of his motion for relief under 28 U.S.C. § 2255. An appeal from a § 2255 proceeding requires a certificate of appealability, which will only be granted if reasonable jurists could debate whether the petitioner's constitutional claims have merit or the district court's procedural rulings were debatable or wrong. The court independently reviewed the record and found that Powell did not make the required showing to justify issuing a certificate of appealability. Therefore, the court dismissed Powell's appeal.

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    of 2

    UNPUBLISHED

    UNITED STATES COURT OF APPEALS


    FOR THE FOURTH CIRCUIT

    No. 04-7145

    UNITED STATES OF AMERICA,


    Plaintiff - Appellee,
    versus
    JAMES DEVON POWELL,
    Defendant - Appellant.

    Appeal from the United States District Court for the Eastern
    District of North Carolina, at Raleigh.
    Malcolm J. Howard,
    District Judge. (CR-01-295; CA-03-862-H-5)

    Submitted:

    December 10, 2004

    Decided:

    December 29, 2004

    Before NIEMEYER, WILLIAMS, and TRAXLER, Circuit Judges.

    Dismissed by unpublished per curiam opinion.

    Mark Andrew McBride, Beverly Hills, California, for Appellant.


    Rudolf A. Renfer, Jr., Assistant United States Attorney, Raleigh,
    North Carolina, for Appellee.

    Unpublished opinions are not binding precedent in this circuit.


    See Local Rule 36(c).

    PER CURIAM:
    James Devon Powell seeks to appeal the district courts
    order denying relief on his motion filed under 28 U.S.C. 2255
    (2000).

    An appeal may not be taken from the final order in a

    2255 proceeding unless a circuit justice or judge issues a


    certificate of appealability.

    28 U.S.C. 2253(c)(1) (2000).

    certificate of appealability will not issue absent a substantial


    showing of the denial of a constitutional right.

    2253(c)(2)

    demonstrating
    constitutional

    (2000).
    that

    prisoner

    reasonable

    claims

    are

    satisfies

    jurists

    debatable

    would

    and

    that

    this

    28 U.S.C.
    standard

    find
    any

    that

    by
    his

    dispositive

    procedural rulings by the district court are also debatable or


    wrong.

    See Miller-El v. Cockrell, 537 U.S. 322, 336 (2003);

    Slack v. McDaniel, 529 U.S. 473, 484 (2000); Rose v. Lee, 252 F.3d
    676, 683 (4th Cir. 2001).

    We have independently reviewed the

    record and conclude that Powell has not made the requisite showing.
    Accordingly, we deny his motion for a certificate of appealability,
    and we 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

    - 2 -

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