United States of America v. Wade Cutchen, a/k/a Tool Man

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 12-6855
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
WADE CUTCHEN, a/k/a Tool Man,
Defendant - Appellant.
Appeal from the United States District Court for the Eastern
District of Virginia, at Newport News. Arenda Wright Allen,
District Judge. (4:99-cr-00055-AWA-2)
Submitted: August 22, 2012 Decided: August 27, 2012
Before WILKINSON, GREGORY, and DIAZ, Circuit Judges.
Dismissed by unpublished per curiam opinion.
Wade Cutchen, Appellant Pro Se. Timothy Richard Murphy, Special
Assistant United States Attorney, Newport News, Virginia, for
Appellee.
Unpublished opinions are not binding precedent in this circuit.

-- 1 of 3 --

2
PER CURIAM:
Wade Cutchen seeks to appeal the district court’s
order construing his motion to dismiss the indictment as a
successive 28 U.S.C.A. § 2255 (West Supp. 2012) motion and
dismissing it on that basis. The order is not appealable unless
a circuit justice or judge issues a certificate of
appealability. 28 U.S.C. § 2253(c)(1)(B) (2006). 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)
(2006). When the district court denies relief on the merits, a
prisoner satisfies this standard by demonstrating that
reasonable jurists would find that the district court’s
assessment of the constitutional claims is debatable or
wrong. Slack v. McDaniel, 529 U.S. 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 a debatable claim of the
denial of a constitutional right. Slack, 529 U.S. at 484-85.
We have independently reviewed the record and conclude
that Cutchen has not made the requisite showing. Accordingly,
we deny his motion for a certificate of appealability and
dismiss the appeal. We dispense with oral argument because the
facts and legal contentions are adequately presented in the

-- 2 of 3 --

3
materials before the court and argument would not aid the
decisional process.
DISMISSED

-- 3 of 3 --