Opinion
No. 15-6945
11-19-2015
UNITED STATES OF AMERICA, Plaintiff - Appellee, v. DANIEL REKUS GIBERT, Defendant - Appellant.
Daniel Rekus Gibert, Appellant Pro Se. Maxwell B. Cauthen, III, Assistant United States Attorney, Greenville, South Carolina, for Appellee.
UNPUBLISHED Appeal from the United States District Court for the District of South Carolina, at Anderson.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) 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 Dismissed by unpublished per curiam opinion.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 Unpublished opinions are not binding precedent in this circuit. 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 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