United States of America v. Daniel Rekus Gibert

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 15-6945
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
DANIEL REKUS GIBERT,
Defendant - Appellant.
Appeal from the United States District Court for the District of
South Carolina, at Anderson. Timothy M. Cain, District Judge.
(8:09-cr-00438-TMC-1; 8:14-cv-02641-TMC)
Submitted: November 17, 2015 Decided: November 19, 2015
Before SHEDD, DUNCAN, and DIAZ, Circuit Judges.
Dismissed by unpublished per curiam opinion.
Daniel Rekus Gibert, Appellant Pro Se. Maxwell B. Cauthen, III,
Assistant United States Attorney, Greenville, South Carolina,
for Appellee.
Unpublished opinions are not binding precedent in this circuit.

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PER CURIAM:
Daniel Rekus Gibert seeks to appeal the district court’s
orders dismissing as untimely his 28 U.S.C. § 2255 (2012) motion
and denying his Fed. R. Civ. P. 59(e) motion. 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
Gibert has not made the requisite showing. See Day v.
McDonough, 547 U.S. 198, 209-10 (2006) (permitting sua sponte
consideration of timeliness of postconviction motion provided
“court . . . accord[s] the parties fair notice and an

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opportunity to present their positions”); see Hill v. Braxton,
277 F.3d 701, 706 (4th Cir. 2002). Accordingly, we deny a
certificate of appealability, deny leave to proceed in forma
pauperis, 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

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