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  • United States v. Shirland Fitzgerald, 4th Cir. (2013)

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    The United States Court of Appeals for the Fourth Circuit dismissed Shirland Fitzgerald's appeal without prejudice. The district court had treated Fitzgerald's Rule 60(b) motion as a successive 28 U.S.C. § 2255 motion and dismissed it on that basis. The appellate court independently reviewed the record and determined that Fitzgerald did not make a substantial showing of the denial of a constitutional right, as required for a certificate of appealability. Therefore, the court denied the certificate and dismissed the appeal without oral argument.

    Original Description:

    Filed: 2013-11-20 Precedential Status: Non-Precedential Docket: 13-7514

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    The United States Court of Appeals for the Fourth Circuit dismissed Shirland Fitzgerald's appeal without prejudice. The district court had treated Fitzgerald's Rule 60(b) motion as a successive 28 U.S.C. § 2255 motion and dismissed it on that basis. The appellate court independently reviewed the record and determined that Fitzgerald did not make a substantial showing of the denial of a constitutional right, as required for a certificate of appealability. Therefore, the court denied the certificate and dismissed the appeal without oral argument.

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    Public Domain
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    20 views3 pages

    United States v. Shirland Fitzgerald, 4th Cir. (2013)

    Uploaded by

    Scribd Government Docs
    The United States Court of Appeals for the Fourth Circuit dismissed Shirland Fitzgerald's appeal without prejudice. The district court had treated Fitzgerald's Rule 60(b) motion as a successive 28 U.S.C. § 2255 motion and dismissed it on that basis. The appellate court independently reviewed the record and determined that Fitzgerald did not make a substantial showing of the denial of a constitutional right, as required for a certificate of appealability. Therefore, the court denied the certificate and dismissed the appeal without oral argument.

    Copyright:

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    of 3

    UNPUBLISHED

    UNITED STATES COURT OF APPEALS


    FOR THE FOURTH CIRCUIT

    No. 13-7514

    UNITED STATES OF AMERICA,


    Plaintiff - Appellee,
    v.
    SHIRLAND L. FITZGERALD,
    Defendant - Appellant.

    Appeal from the United States District Court for the Western
    District of Virginia, at Danville.
    Samuel G. Wilson, District
    Judge. (4:08-cr-00001-SGW-1; 4:13-cv-80625-SGW-RSB)

    Submitted:

    November 15, 2013

    Decided:

    November 20, 2013

    Before MOTZ, GREGORY, and WYNN, Circuit Judges.

    Dismissed by unpublished per curiam opinion.

    Shirland L. Fitzgerald, Appellant Pro Se. Anthony Paul Giorno,


    Assistant United States Attorney, Roanoke, Virginia; Mitchell
    Stuart Bober, UNITED STATES DEPARTMENT OF JUSTICE, Washington,
    DC, for Appellee.

    Unpublished opinions are not binding precedent in this circuit.

    PER CURIAM:
    Shirland L. Fitzgerald seeks to appeal the district
    courts order treating his Fed. R. Civ. P. 60(b) motion as a
    successive 28 U.S.C. 2255 (2012) motion, and dismissing it
    without prejudice on that basis.
    unless

    circuit

    appealability.

    justice

    or

    The order is not appealable

    judge

    issues

    28 U.S.C. 2253(c)(1)(B) (2006).

    certificate

    of

    A certificate

    of appealability will not issue absent a substantial showing of


    the denial of a constitutional right.
    (2006).

    28 U.S.C. 2253(c)(2)

    When the district court denies relief on the merits, a

    prisoner

    satisfies

    this

    jurists

    would

    reasonable

    standard
    find

    by

    that

    demonstrating

    the

    district

    that

    courts

    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).
    denies

    relief

    demonstrate

    both

    on

    procedural

    that

    the

    When the district court

    grounds,

    dispositive

    the

    prisoner

    procedural

    ruling

    must
    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

    Fitzgerald

    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


    2

    before

    this

    court

    and

    argument

    would

    not

    aid

    the

    decisional

    process.
    DISMISSED

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