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  • United States v. Elliott, 4th Cir. (2008)

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    The United States Court of Appeals for the Fourth Circuit dismissed Damon Emanuel Elliott's appeal of the district court's ruling construing his motion for relief under 28 U.S.C. § 2244 as a successive 28 U.S.C. § 2255 motion. The court determined that Elliott did not make the requisite showing to receive a certificate of appealability, as reasonable jurists would not find the district court's assessment of Elliott's constitutional claims to be debatable or wrong. Therefore, the court denied a certificate of appealability and dismissed the appeal.

    Original Description:

    Filed: 2008-07-02 Precedential Status: Non-Precedential Docket: 08-6275

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    The United States Court of Appeals for the Fourth Circuit dismissed Damon Emanuel Elliott's appeal of the district court's ruling construing his motion for relief under 28 U.S.C. § 2244 as a successive 28 U.S.C. § 2255 motion. The court determined that Elliott did not make the requisite showing to receive a certificate of appealability, as reasonable jurists would not find the district court's assessment of Elliott's constitutional claims to be debatable or wrong. Therefore, the court denied a certificate of appealability and dismissed the appeal.

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    Public Domain
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    4 views2 pages

    United States v. Elliott, 4th Cir. (2008)

    Uploaded by

    Scribd Government Docs
    The United States Court of Appeals for the Fourth Circuit dismissed Damon Emanuel Elliott's appeal of the district court's ruling construing his motion for relief under 28 U.S.C. § 2244 as a successive 28 U.S.C. § 2255 motion. The court determined that Elliott did not make the requisite showing to receive a certificate of appealability, as reasonable jurists would not find the district court's assessment of Elliott's constitutional claims to be debatable or wrong. Therefore, the court denied a certificate of appealability and dismissed the appeal.

    Copyright:

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    of 2

    UNPUBLISHED

    UNITED STATES COURT OF APPEALS


    FOR THE FOURTH CIRCUIT

    No. 08-6275

    UNITED STATES OF AMERICA,


    Plaintiff - Appellee,
    v.
    DAMON EMANUEL ELLIOTT,
    Defendant - Appellant.

    Appeal from the United States District Court for the District of
    Maryland, at Greenbelt. Peter J. Messitte, District Judge. (8:97cr-00053-PJM-1; 8:08-cv-00011-PJM)

    Submitted:

    June 26, 2008

    Decided:

    July 2, 2008

    Before KING and DUNCAN, Circuit Judges, and WILKINS, Senior Circuit
    Judge.

    Dismissed by unpublished per curiam opinion.

    Damon Emanuel Elliott, Appellant Pro Se. Ronald Jay Tenpas, UNITED
    STATES DEPARTMENT OF JUSTICE, Washington, D.C., for Appellee.

    Unpublished opinions are not binding precedent in this circuit.

    PER CURIAM:
    Damon

    Emanuel

    Elliott

    seeks

    to

    appeal

    the

    district

    courts order construing his Motion for Relief Under 28 U.S.C.


    2244" as a 28 U.S.C. 2255 (2000) motion, and dismissing it as
    successive.
    or

    judge

    The order is not appealable unless a circuit justice

    issues

    certificate

    of

    appealability.

    28

    U.S.C.

    2253(c)(1) (2000). 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) (2000).

    A prisoner satisfies this

    standard by demonstrating that reasonable jurists would find that


    any assessment of the constitutional claims by the district court
    is debatable or wrong and that any dispositive procedural ruling by
    the district court is likewise debatable.

    Miller-El v. Cockrell,

    537 U.S. 322, 336-38 (2003); Slack v. McDaniel, 529 U.S. 473, 484
    (2000); Rose v. Lee, 252 F.3d 676, 683-84 (4th Cir. 2001).

    We have

    independently reviewed the record and conclude that Elliott has not
    made the requisite showing.

    Accordingly, we deny Elliotts motion

    to expedite as moot, deny a certificate of appealability, and


    dismiss the appeal.
    facts

    and

    materials

    legal
    before

    We dispense with oral argument because the

    contentions
    the

    court

    are

    adequately

    and

    argument

    presented

    would

    not

    in

    the

    aid

    the

    decisional process.
    DISMISSED

    - 2 -

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