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  • United States v. Daryl Locust, 4th Cir. (2013)

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    Daryl Locust sought to appeal the district court's denial of his Rule 60(b) motion for reconsideration of the denial of his 28 U.S.C. § 2255 motion. An appellate panel consisting of Judges Niemeyer, King, and Keenan independently reviewed the record and determined that Locust did not make the requisite showing to receive a certificate of appealability. Specifically, he did not demonstrate that reasonable jurists would find the district court's assessment of his constitutional claims debatable or wrong, or that the dispositive procedural ruling was debatable and that his motion stated a debatable claim of the denial of a constitutional right. Accordingly, the panel denied a certificate of appealability and dismissed the

    Original Description:

    Filed: 2013-04-01 Precedential Status: Non-Precedential Docket: 12-7916

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    Daryl Locust sought to appeal the district court's denial of his Rule 60(b) motion for reconsideration of the denial of his 28 U.S.C. § 2255 motion. An appellate panel consisting of Judges Niemeyer, King, and Keenan independently reviewed the record and determined that Locust did not make the requisite showing to receive a certificate of appealability. Specifically, he did not demonstrate that reasonable jurists would find the district court's assessment of his constitutional claims debatable or wrong, or that the dispositive procedural ruling was debatable and that his motion stated a debatable claim of the denial of a constitutional right. Accordingly, the panel denied a certificate of appealability and dismissed the

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    6 views3 pages

    United States v. Daryl Locust, 4th Cir. (2013)

    Uploaded by

    Scribd Government Docs
    Daryl Locust sought to appeal the district court's denial of his Rule 60(b) motion for reconsideration of the denial of his 28 U.S.C. § 2255 motion. An appellate panel consisting of Judges Niemeyer, King, and Keenan independently reviewed the record and determined that Locust did not make the requisite showing to receive a certificate of appealability. Specifically, he did not demonstrate that reasonable jurists would find the district court's assessment of his constitutional claims debatable or wrong, or that the dispositive procedural ruling was debatable and that his motion stated a debatable claim of the denial of a constitutional right. Accordingly, the panel denied a certificate of appealability and dismissed the

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    of 3

    UNPUBLISHED

    UNITED STATES COURT OF APPEALS


    FOR THE FOURTH CIRCUIT

    No. 12-7916

    UNITED STATES OF AMERICA,


    Plaintiff - Appellee,
    v.
    DARYL F. LOCUST, a/k/a Derek Locust, a/k/a 8, a/k/a Daryl
    Frank Locusts,
    Defendant - Appellant.

    Appeal from the United States District Court for the Eastern
    District of Virginia, at Newport News.
    Rebecca Beach Smith,
    Chief District Judge.
    (4:06-cr-00040-RBS-TEM-1; 4:09-cv-00141RBS)

    Submitted:

    March 28, 2013

    Decided:

    April 1, 2013

    Before NIEMEYER, KING, and KEENAN, Circuit Judges.

    Dismissed by unpublished per curiam opinion.

    Daryl F. Locust, Appellant


    Special
    Assistant
    United
    Virginia, for Appellee.

    Pro Se.
    Timothy Richard Murphy,
    States
    Attorney,
    Newport
    News,

    Unpublished opinions are not binding precedent in this circuit.

    PER CURIAM:
    Daryl F. Locust seeks to appeal the district courts
    order

    denying

    his

    Fed.

    R.

    Civ.

    P.

    60(b)

    motion

    for

    reconsideration of the district courts order denying relief on


    his 28 U.S.C.A. 2255 (West Supp. 2012) motion.
    not

    appealable

    unless

    circuit

    certificate of appealability.
    A certificate

    of

    justice

    or

    The order is

    judge

    issues

    28 U.S.C. 2253(c)(1)(B) (2006).

    appealability

    will

    not

    issue

    absent

    substantial showing of the denial of a constitutional right.


    28 U.S.C. 2253(c)(2) (2006).
    relief

    on

    the

    demonstrating
    district

    merits,
    that

    courts

    debatable

    or

    When the district court denies

    prisoner

    reasonable

    assessment

    wrong.

    satisfies

    jurists

    would

    of

    the

    v.

    McDaniel,

    Slack

    this

    standard

    find

    constitutional
    529

    U.S.

    by

    that

    the

    claims

    is

    473,

    484

    (2000); see Miller-El v. Cockrell, 537 U.S. 322, 336-38 (2003).


    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

    claim of the denial of a constitutional right.

    debatable

    Slack, 529 U.S.

    at 484-85.
    We have independently reviewed the record and conclude
    that Locust has not made the requisite showing.

    Accordingly, we

    deny a certificate of appealability and dismiss the appeal.


    dispense

    with

    oral

    argument

    because
    2

    the

    facts

    and

    We

    legal

    contentions

    are

    adequately

    presented

    in

    the

    materials

    before

    this court and argument would not aid the decisional process.
    DISMISSED

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