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United States v. Albury Francis, 4th Cir. (2015)

1) Albury Francis appealed the district court's denial of his 28 U.S.C. § 2255 motion. 2) A certificate of appealability is required to appeal the denial of a § 2255 motion. 3) The appellate court independently reviewed the record and determined that Francis did not make the requisite showing to obtain a certificate of appealability. Therefore, the court dismissed Francis's appeal.

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30 views3 pages

United States v. Albury Francis, 4th Cir. (2015)

1) Albury Francis appealed the district court's denial of his 28 U.S.C. § 2255 motion. 2) A certificate of appealability is required to appeal the denial of a § 2255 motion. 3) The appellate court independently reviewed the record and determined that Francis did not make the requisite showing to obtain a certificate of appealability. Therefore, the court dismissed Francis's appeal.

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UNPUBLISHED

UNITED STATES COURT OF APPEALS


FOR THE FOURTH CIRCUIT

No. 15-6880

UNITED STATES OF AMERICA,


Plaintiff - Appellee,
v.
ALBURY FRANCIS,
Defendant - Appellant.

Appeal from the United States District Court for the Eastern
District of North Carolina, at Raleigh.
Terrence W. Boyle,
District Judge. (5:01-cr-00094-BO-1; 5:14-cv-00881-BO)

Submitted:

October 15, 2015

Decided:

October 20, 2015

Before WILKINSON, AGEE, and HARRIS, Circuit Judges.

Dismissed by unpublished per curiam opinion.

Albury Francis, Appellant Pro Se.


Ethan A. Ontjes, Assistant
United States Attorney, Seth Morgan Wood, OFFICE OF THE UNITED
STATES ATTORNEY, Raleigh, North Carolina, for Appellee.

Unpublished opinions are not binding precedent in this circuit.

PER CURIAM:
Albury Francis seeks to appeal the district courts order
denying relief on his 28 U.S.C. 2255 (2012) motion.

The order

is not appealable unless a circuit justice or judge issues a


certificate of appealability.
A

certificate

of

28 U.S.C. 2253(c)(1)(B) (2012).

appealability

will

not

issue

absent

substantial showing of the denial of a constitutional right.


28 U.S.C. 2253(c)(2) (2012).
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
Francis has not made the requisite showing.

Accordingly, we

deny a certificate of appealability and dismiss the appeal.


dispense

with

oral

argument

because

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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