Opinion
20-6782
01-20-2022
UNITED STATES OF AMERICA, Plaintiff-Appellee, v. JOHN MARSHALL UNDERWOOD, JR., Defendant-Appellant.
John Marshall Underwood, Jr., Appellant Pro Se.
UNPUBLISHED
Submitted: December 14, 2021
Appeal from the United States District Court for the Southern District of West Virginia, at Charleston. John T. Copenhaver, Jr., Senior District Judge. (2:17-cr-00029-1; 2:18-cv-00671)
John Marshall Underwood, Jr., Appellant Pro Se.
Dismissed by unpublished per curiam opinion.
Unpublished opinions are not binding precedent in this circuit.
Before NIEMEYER, KING, and HARRIS, Circuit Judges.
PER CURIAM:
John Marshall Underwood, Jr., seeks to appeal the district court's order accepting the recommendation of the magistrate judge and denying relief on Underwood's 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, 137 S.Ct. 759, 773-74 (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)).
Because Underwood failed to specifically object to the magistrate judge's recommendation as it pertained to Underwood's ineffective assistance claim related to counsel's failure to move to dismiss the indictment, he has waived review of this claim. See Martin v. Duffy, 858 F.3d 239, 245 (4th Cir. 2017).
We have independently reviewed the record and conclude that Underwood has not made the requisite showing. Accordingly, we deny Underwood's motions for appointment of counsel, to compel discovery, and for a certificate of appealability, and we 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.
An evidentiary hearing is generally warranted where, as here, competing sworn statements offer differing factual allegations that "relate primarily to purported occurrences outside the courtroom and upon which the record could, therefore, cast no real light." United States v. White, 366 F.3d 291, 302 (4th Cir. 2004) (cleaned up). However, even assuming, without deciding, that the district court erred by rejecting, without a hearing, Underwood's claim that counsel rendered ineffective assistance by failing to advise him of the affirmative defense of entrapment, Underwood has not shown that he suffered any prejudice because the defense fails as a matter of law.
DISMISSED