United States of America v. Anthony Depree Smith, a/k/a Straight

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 23-6436
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
ANTHONY DEPREE SMITH, a/k/a Straight,
Defendant - Appellant.
Appeal from the United States District Court for the Eastern District of North Carolina, at
Wilmington. Terrence W. Boyle, District Judge. (7:18-cr-00016-BO-1; 7:22-cv-00037-
BO)
Submitted: September 28, 2023 Decided: October 3, 2023
Before NIEMEYER, THACKER, and RUSHING, Circuit Judges.
Dismissed by unpublished per curiam opinion.
Anthony Depree Smith, Appellant Pro Se.
Unpublished opinions are not binding precedent in this circuit.

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PER CURIAM:
Anthony Depree Smith seeks to appeal the district court’s order denying relief on
his counseled 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, 580 U.S. 100, 115-17 (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)).
We have independently reviewed the record and conclude that Smith 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 before this court and argument would not aid the
decisional process.
DISMISSED
∗ We decline to consider the ineffective assistance of counsel claims related to
Smith’s sentence that are raised for the first time on appeal. See In re Under Seal, 749 F.3d
276, 285 (4th Cir. 2014).

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