United States of America v. Delmar Sherman Gilmer, Jr.

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 17-7573
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
DELMAR SHERMAN GILMER, JR.,
Defendant - Appellee.
Appeal from the United States District Court for the Western District of Virginia, at
Harrisonburg. Michael F. Urbanski, Chief District Judge. (5:00-cr-30053-MFU-RSB-6;
5:17-cv-81293-MFU-RSB)
Submitted: April 24, 2018 Decided: April 26, 2018
Before WYNN and DIAZ, Circuit Judges, and SHEDD, Senior Circuit Judge.
Dismissed by unpublished per curiam opinion.
Delmar Sherman Gilmer, Jr., Appellant Pro Se.
Unpublished opinions are not binding precedent in this circuit.

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PER CURIAM:
Delmar Sherman Gilmer, Jr., seeks to appeal the district court’s orders denying
relief on his 28 U.S.C. § 2255 (2012) motion and denying reconsideration.* The orders
are not appealable unless a circuit justice or judge issues a certificate of appealability. 28
U.S.C. § 2253(c)(1)(B) (2012). 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)
(2012). 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 Gilmer 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
contentions are adequately presented in the materials before this court and argument
would not aid the decisional process.
DISMISSED
* Although the district court improperly construed Gilmer’s timely Fed. R. Civ. P.
59(e) motion as a successive § 2255 motion, this error does not affect the resolution of
this appeal.

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