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  • United States v. Holmes, 4th Cir. (2008)

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    This document is an unpublished opinion from the United States Court of Appeals for the Fourth Circuit dismissing an appeal from Benjamin Nelson Holmes. The district court had denied several nondispositive motions from Holmes as moot during the pendency of his unsuccessful 28 U.S.C. § 2255 motion. The Fourth Circuit independently reviewed the record and determined that Holmes did not make the requisite showing to obtain a certificate of appealability, denying his motion and dismissing the appeal.

    Original Description:

    Filed: 2008-03-06 Precedential Status: Non-Precedential Docket: 07-7424

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    This document is an unpublished opinion from the United States Court of Appeals for the Fourth Circuit dismissing an appeal from Benjamin Nelson Holmes. The district court had denied several nondispositive motions from Holmes as moot during the pendency of his unsuccessful 28 U.S.C. § 2255 motion. The Fourth Circuit independently reviewed the record and determined that Holmes did not make the requisite showing to obtain a certificate of appealability, denying his motion and dismissing the appeal.

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    Public Domain
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    7 views2 pages

    United States v. Holmes, 4th Cir. (2008)

    Uploaded by

    Scribd Government Docs
    This document is an unpublished opinion from the United States Court of Appeals for the Fourth Circuit dismissing an appeal from Benjamin Nelson Holmes. The district court had denied several nondispositive motions from Holmes as moot during the pendency of his unsuccessful 28 U.S.C. § 2255 motion. The Fourth Circuit independently reviewed the record and determined that Holmes did not make the requisite showing to obtain a certificate of appealability, denying his motion and dismissing the appeal.

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    of 2

    UNPUBLISHED

    UNITED STATES COURT OF APPEALS


    FOR THE FOURTH CIRCUIT

    No. 07-7424

    UNITED STATES OF AMERICA,


    Plaintiff - Appellee,
    v.
    BENJAMIN NELSON HOLMES,
    Defendant - Appellant.

    Appeal from the United States District Court for the District of
    South Carolina, at Florence.
    C. Weston Houck, Senior District
    Judge. (4:01-cr-00121-CWH; 4:05-cv-02953-CWH)

    Submitted:

    February 28, 2008

    Decided: March 6, 2008

    Before WILKINSON, NIEMEYER, and MICHAEL, Circuit Judges.

    Dismissed by unpublished per curiam opinion.

    Benjamin Nelson Holmes, Appellant Pro Se. Alfred William Walker


    Bethea, Jr., Assistant United States Attorney, Florence, South
    Carolina, for Appellee.

    Unpublished opinions are not binding precedent in this circuit.

    PER CURIAM:
    Benjamin Nelson Holmes seeks to appeal the district
    courts order denying as moot several nondispositive motions filed
    during the pendency of Holmes unsuccessful 28 U.S.C. 2255 (2000)
    motion.
    judge

    The order is not appealable unless a circuit justice or

    issues

    certificate

    of

    appealability.

    See

    28

    U.S.C.

    2253(c)(1) (2000). 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) (2000).

    A prisoner satisfies this

    standard by demonstrating that reasonable jurists would find that


    any assessment of the constitutional claims by the district court
    is debatable or wrong and that any dispositive procedural ruling by
    the

    district

    court

    is

    likewise

    debatable.

    See

    Miller-El

    v.

    Cockrell, 537 U.S. 322, 336-38 (2003); Slack v. McDaniel, 529 U.S.
    473, 484 (2000); Rose v. Lee, 252 F.3d 676, 683-84 (4th Cir. 2001).
    We have independently reviewed the record and conclude that Holmes
    has not made the requisite showing.

    Accordingly, we deny Holmes

    motion for 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 the


    court and argument would not aid the decisional process.

    DISMISSED

    - 2 -

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