US v. Kwamane Everett, No. 19-7405 (4th Cir. 2020)
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UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 19-7405 UNITED STATES OF AMERICA, Plaintiff - Appellee, v. KWAMANE MONTE EVERETT, Defendant - Appellant. Appeal from the United States District Court for the Eastern District of North Carolina, at Greenville. James C. Dever III, District Judge. (4:12-cr-00057-D-4; 4:16-cv-00095-D) Submitted: November 6, 2020 Decided: November 17, 2020 Before NIEMEYER, FLOYD, and RICHARDSON, Circuit Judges. Dismissed in part and affirmed in part by unpublished per curiam opinion. Kwamane Monte Everett, Appellant Pro Se. Unpublished opinions are not binding precedent in this circuit. PER CURIAM: Kwamane Monte Everett appeals the district court’s order denying relief on his 28 U.S.C. § 2255 motion and denying his pro se motions in which he argued that he should receive credit against his sentence for time he spent in state custody before the district court imposed judgment in this case. The portion of the district court’s order denying relief on Everett’s § 2255 motion is not appealable unless a circuit justice or judge issues a certificate of appealability. See 28 U.S.C. § 2253(c)(1)(B) (2018). 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) (2018). 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, 137 S. Ct. 759, 773-74 (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)). Limiting our review of the record to the issues raised in Everett’s informal brief, we conclude that Everett has not made the requisite showing. See 4th Cir. R. 34(b); see also Jackson v. Lightsey, 775 F.3d 170, 177 (4th Cir. 2014) (“The informal brief is an important document; under Fourth Circuit rules, our review is limited to issues preserved in that brief.”). Accordingly, we deny a certificate of appealability and dismiss Everett’s appeal 2 of the district court’s order denying relief under § 2255 for the reasons stated by the district court. With respect to Everett’s challenges to the execution of his sentence, we have reviewed the record and conclude that the district court correctly denied those motions for lack of jurisdiction. See Fontanez v. O'Brien, 807 F.3d 84, 86 (4th Cir. 2015) (“As a general matter, a federal prisoner must challenge the execution of a sentence under 28 U.S.C. § 2241, and the sentence itself under 28 U.S.C. § 2255.”). We therefore affirm the remainder of the district court’s judgment. 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 IN PART, AFFIRMED IN PART 3
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