US v. Leroy Kelly, No. 12-6937 (4th Cir. 2012)
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UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 12-6937 UNITED STATES OF AMERICA, Plaintiff - Appellee, v. LEROY JOSEPH KELLY, Defendant - Appellant. Appeal from the United States District Court for the Western District of North Carolina, at Charlotte. Max O. Cogburn, Jr., District Judge. (3:97-cr-00333-MOC-1; 3:00-cv-00002-RLV) Submitted: September 27, 2012 Decided: October 2, 2012 Before MOTZ, DAVIS, and WYNN, Circuit Judges. Dismissed by unpublished per curiam opinion. Leroy Joseph Kelly, Appellant Pro Se. C. Nicks Williams, OFFICE OF THE UNITED STATES ATTORNEY, Charlotte, North Carolina, for Appellee. Unpublished opinions are not binding precedent in this circuit. PER CURIAM: Leroy court s order appealability Joseph Kelly denying his in seeks action his to applications construed appeal unless a circuit certificate of appealability. A certificate of justice district for a certificate of as a successive 28 U.S.C.A. § 2255 (West Supp. 2012) motion. appealable the The order is not or judge issues a 28 U.S.C. § 2253(c)(1)(B) (2006). appealability will not issue absent a substantial showing of the denial of a constitutional right. 28 U.S.C. § 2253(c)(2) (2006). relief on the demonstrating district merits, that court s debatable or a When the district court denies prisoner reasonable assessment wrong. satisfies jurists would of the v. McDaniel, Slack this standard find U.S. that the claims constitutional 529 by is 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 claim of the denial of a constitutional right. a debatable Slack, 529 U.S. at 484-85. We have independently reviewed the record and conclude that Kelly has not made the requisite showing. Accordingly, we deny a certificate of appealability and dismiss the appeal. dispense with oral argument because 2 the facts and We legal contentions are adequately presented in the materials before the court and argument would not aid the decisional process. DISMISSED 3
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