US v. Daniel Kelly, No. 08-6122 (4th Cir. 2008)

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UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 08-6122 UNITED STATES OF AMERICA, Plaintiff Appellee, v. DANIEL KELLY, a/k/a Danial Edward Kelly, Defendant Appellant. Appeal from the United States District Court for the Western District of North Carolina, at Statesville. Richard L. Voorhees, District Judge. (5:96-cr-00033-RLV-1; 5:04-cv-00053RLV) Submitted: November 13, 2008 Decided: November 19, 2008 Before WILKINSON, NIEMEYER, and SHEDD, Circuit Judges. Dismissed by unpublished per curiam opinion. Daniel Kelly, Appellant Pro Se. Gretchen C. F. Shappert, United States Attorney, Charlotte, North Carolina, for Appellee. Unpublished opinions are not binding precedent in this circuit. PER CURIAM: Daniel Kelly seeks to appeal the district court s order denying relief on his 28 U.S.C.A. § 2255 (West Supp. 2008) motion. judge The order is not appealable unless a circuit justice or issues a certificate § 2253(c)(1) (2000). issue absent constitutional prisoner a substantial right. jurists constitutional appealability. 28 U.S.C. A certificate of appealability will not satisfies reasonable of 28 this would claims by showing U.S.C. the the denial § 2253(c)(2) standard find of by that (2000). demonstrating any district of assessment court is a A that of the debatable or wrong and that any dispositive procedural ruling by the district court is likewise debatable. Miller-El v. Cockrell, 537 U.S. 322, 336-38 (2003); Slack v. McDaniel, 529 U.S. 473, 484 (2000); Rose v. Lee, 252 F.3d 676, 683-84 (4th Cir. 2001). We have independently reviewed the record and conclude that Kelly has not made the certificate dispense of with requisite showing. appealability oral argument and Accordingly, dismiss because the the we deny appeal. facts and a We legal contentions are adequately presented in the materials before the court and argument would not aid the decisional process. DISMISSED 2

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