United States of America v. Frankie Sylvester Turner

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 13-6925
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
FRANKIE SYLVESTER TURNER,
Defendant - Appellant.
Appeal from the United States District Court for the Eastern
District of Virginia, at Norfolk. Rebecca Beach Smith, Chief
District Judge. (2:93-cr-00014-1; 2:13-cv-00255-RBS)
Submitted: August 22, 2013 Decided: August 27, 2013
Before MOTZ, DIAZ, and FLOYD, Circuit Judges.
Dismissed by unpublished per curiam opinion.
Frankie Sylvester Turner, Appellant Pro Se. Elizabeth Marie
Yusi, OFFICE OF THE UNITED STATES ATTORNEY, Norfolk, Virginia,
for Appellee.
Unpublished opinions are not binding precedent in this circuit.

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PER CURIAM:
Frankie Sylvester Turner seeks to appeal the district
court’s order construing his 28 U.S.C.A. § 2241 (West 2006 &
Supp. 2013) petition as a 28 U.S.C.A. § 2255 (West Supp. 2013)
motion and dismissing it as untimely. 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 Turner 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

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contentions are adequately presented in the materials before
this court and argument would not aid the decisional process.
DISMISSED

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