US v. James Bailey, Jr., No. 15-6863 (4th Cir. 2015)
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UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 15-6863 UNITED STATES OF AMERICA, Plaintiff - Appellee, v. JAMES W. BAILEY, JR., a/k/a James W. "Bill" Bailey, Jr., Defendant - Appellant. No. 15-7197 UNITED STATES OF AMERICA, Plaintiff - Appellee, v. JAMES W. BAILEY, JR., a/k/a James W. "Bill" Bailey, Jr., Defendant - Appellant. Appeals from the United States District Court for the Western District of North Carolina, at Asheville. Martin K. Reidinger, District Judge. (1:11-cr-00010-MR-DLH-1; 1:14-cv-00310-MR) Submitted: November 17, 2015 Amended: Decided: November 19, 2015 Before SHEDD, DUNCAN, and DIAZ, Circuit Judges. November 19, 2015 Dismissed by unpublished per curiam opinion. James W. Bailey, Jr., Appellant Pro Se. Richard A. Friedman, UNITED STATES DEPARTMENT OF JUSTICE, Washington, D.C., Amy Elizabeth Ray, Richard Lee Edwards, Corey F. Ellis, Paul Bradford Taylor, Assistant United States Attorneys, Asheville, North Carolina, Benjamin Bain-Creed, OFFICE OF THE UNITED STATES ATTORNEY, William A. Brafford, Jonathan Henry Ferry, Assistant United States Attorneys, Charlotte, North Carolina, for Appellee. Unpublished opinions are not binding precedent in this circuit. 2 PER CURIAM: James W. Bailey, Jr., seeks to appeal the district court’s orders denying his prejudgment motion to compel relief on his 28 U.S.C. § 2255 (2012) motion. and denying This court may exercise jurisdiction only over final orders, 28 U.S.C. § 1291 (2012), and 28 U.S.C. certain § 1292 interlocutory (2012); Fed. R. and Civ. collateral P. 54(b); orders, Cohen v. Beneficial Indus. Loan Corp., 337 U.S. 541, 545-46 (1949). The order denying Bailey’s motion to compel is neither a final order nor an appealable interlocutory or collateral order, nor is it appealable under the cumulative judgment rule. Bryson, 406 F.3d 284, 288 (4th Cir. 2005). See In re Accordingly, we dismiss Case No. 15-6863 for lack of jurisdiction. The order denying Bailey’s § 2255 motion is not appealable unless a circuit appealability. justice or judge issues a 28 U.S.C. § 2253(c)(1)(B) (2012). certificate of A certificate of appealability will not issue absent “a substantial showing of the denial of a constitutional right.” (2012). 28 U.S.C. § 2253(c)(2) When the district court denies relief on the merits, a prisoner reasonable satisfies this jurists would standard find that by the demonstrating district that 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). 3 When the district court denies relief demonstrate on both procedural that the grounds, dispositive the prisoner procedural must 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 Bailey has not made the requisite showing. Accordingly, we deny a certificate of appealability and dismiss Case No. 15-7197. dispense with contentions are oral argument adequately because presented in the the facts We and legal materials before this court and argument would not aid the decisional process. DISMISSED 4
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