Opinion
23-6436
10-03-2023
UNITED STATES OF AMERICA, Plaintiff-Appellee, v. ANTHONY DEPREE SMITH, a/k/a Straight, Defendant-Appellant.
Anthony Depree Smith, Appellant Pro Se.
UNPUBLISHED
Submitted: September 28, 2023
Appeal from the United States District Court for the Eastern District of North Carolina, at Wilmington. Terrence W. Boyle, District Judge. (7:18-cr-00016-BO-1; 7:22-cv-00037-BO)
Anthony Depree Smith, Appellant Pro Se.
Before NIEMEYER, THACKER, and RUSHING, Circuit Judges.
Dismissed by unpublished per curiam opinion.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM
Anthony Depree Smith seeks to appeal the district court's order denying relief on his counseled 28 U.S.C. § 2255 motion. The order is not appealable unless a circuit justice or judge issues a certificate of appealability. See 28 U.S.C. § 2253(c)(1)(B). 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). When the district court denies relief on the merits, a prisoner satisfies this standard by demonstrating that reasonable jurists could find the district court's assessment of the constitutional claims debatable or wrong. See Buck v. Davis, 580 U.S. 100, 115-17 (2017). 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. Gonzalez v. Thaler, 565 U.S. 134, 140-41 (2012) (citing Slack v. McDaniel, 529 U.S. 473, 484 (2000)).
We have independently reviewed the record and conclude that Smith 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
We decline to consider the ineffective assistance of counsel claims related to Smith's sentence that are raised for the first time on appeal. See In re Under Seal, 749 F.3d 276, 285 (4th Cir. 2014).