                                    UNPUBLISHED

                        UNITED STATES COURT OF APPEALS
                            FOR THE FOURTH CIRCUIT


                                       No. 18-6709


OLANDER R. BYNUM,

                     Petitioner - Appellant,

              v.

HARRY L. ALLSBROOK, JR.,

                     Respondent - Appellee.


                                       No. 18-7168


OLANDER R. BYNUM,

                     Petitioner - Appellant,

              v.

HARRY L. ALLSBROOK, JR.,

                     Respondent - Appellee.


Appeals from the United States District Court for the Eastern District of North Carolina, at
Raleigh. Malcolm J. Howard, Senior District Judge. (5:97-hc-00495-H)


Submitted: December 18, 2018                                 Decided: December 20, 2018


Before AGEE, THACKER, and HARRIS, Circuit Judges.
Dismissed by unpublished per curiam opinion.


Olander R. Bynum, Appellant Pro Se.


Unpublished opinions are not binding precedent in this circuit.




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PER CURIAM:

       In Appeal No. 18-6709, Olander R. Bynum seeks to appeal the district court’s order

denying as untimely his Fed. R. Civ. P. 59(e) motion to amend the district court’s order

denying relief on his 28 U.S.C. § 2254 (2012) petition. The order is not appealable unless

a circuit justice or judge issues a certificate of appealability. See 28 U.S.C. § 2253(c)(1)(A)

(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 petition 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 Bynum has not made the requisite showing. * Accordingly, we deny a certificate of

appealability and dismiss the appeal.

       Bynum has also filed a petition for a writ of mandamus in this appeal, alleging that

the district court has unduly delayed in ruling on his motion for release pending appeal and

seeks an order from this court directing the district court to act. The district court denied


       *
        We conclude that the district court lacked jurisdiction over Bynum’s Rule 59(e)
motion, as it was clearly an unauthorized second or successive 28 U.S.C. § 2254 petition.
See United States v. McRae, 793 F.3d 392, 397 (4th Cir. 2015).

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Bynum’s motion on September 6, 2018. Bynum v. Allsbrook, No. 5:97-hc-00495-H

(E.D.N.C., PACER No. 26). This request is therefore moot. Bynum also seeks an order

from this court directing the district court to release him from prison. However, mandamus

may not be used as a substitute for appeal. In re Lockheed Martin Corp., 503 F.3d 351,

353 (4th Cir. 2007). Accordingly, we deny the petition for writ of mandamus.

      In Appeal No. 18-7168, Bynum appeals the district court’s order denying his motion

for leave to file a motion for release pending appeal. We conclude that the dismissal of

Bynum’s appeal in No. 18-6709 renders this appeal moot. Accordingly, we 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




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