Opinion
No. 17-7002
12-28-2017
UNITED STATES OF AMERICA, Plaintiff - Appellee, v. MICHAEL J. PAVLOCK, Defendant - Appellant.
Michael J. Pavlock, Appellant Pro Se. Andrew R. Cogar, Assistant United States Attorney, OFFICE OF THE UNITED STATES ATTORNEY, Clarksburg, West Virginia, for Appellee.
UNPUBLISHED
Appeal from the United States District Court for the Northern District of West Virginia, at Clarksburg. Irene M. Keeley, Senior District Judge. (1:10-cr-00007-IMK-RWT-1; 1:14-cv-00072-IMK-RWT) Before WILKINSON and DUNCAN, Circuit Judges, and HAMILTON, Senior Circuit Judge. Dismissed by unpublished per curiam opinion. Michael J. Pavlock, Appellant Pro Se. Andrew R. Cogar, Assistant United States Attorney, OFFICE OF THE UNITED STATES ATTORNEY, Clarksburg, West Virginia, for Appellee. Unpublished opinions are not binding precedent in this circuit. PER CURIAM:
Michael J. Pavlock seeks to appeal the district court's order denying his postjudgment motion for reconsideration of the court's prior order denying relief on Pavlock's 28 U.S.C. § 2255 (2012) motion. The order is not appealable unless a circuit justice or judge issues a certificate of appealability. 28 U.S.C. § 2253(c)(1)(B) (2012). 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) (2012). When the district court denies relief on the merits, a prisoner satisfies this standard by demonstrating that reasonable jurists would find that the district 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). 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. Slack, 529 U.S. at 484-85.
Pavlock's motion for reconsideration was filed more than 28 days after the district court entered its dismissal order and, thus, the motion did not toll Pavlock's time to appeal the district court's dismissal order. See Fed. R. App. P. 4(a)(4)(A)(iv), (vi); Fed. R. Civ. P. 59(e); see also Houston v. Lack, 487 U.S. 266, 276 (1988) (holding that a pro se prisoner's notice of appeal is considered filed upon delivery to prison authorities for mailing to the court). --------
We have independently reviewed the record and conclude that Pavlock has not made the requisite showing. Accordingly, we deny Pavlock's application to proceed in formal pauperis, 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