US v. Jason Kelly, No. 12-7708 (4th Cir. 2013)

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UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 12-7708 UNITED STATES OF AMERICA, Plaintiff - Appellee, v. JASON LAMON KELLY, Defendant - Appellant. Appeal from the United States District Court for the Eastern District of North Carolina, at Greenville. James C. Fox, Senior District Judge. (4:08-cr-00055-F-1; 4:11-cv-00110-F) Submitted: February 21, 2013 Before AGEE and Circuit Judge. DAVIS, Circuit Decided: February 25, 2013 Judges, and HAMILTON, Senior Dismissed by unpublished per curiam opinion. Jason Lamon Kelly, Appellant Pro Se. William Ellis Boyle, OFFICE OF THE UNITED STATES ATTORNEY, Raleigh, North Carolina, for Appellee. Unpublished opinions are not binding precedent in this circuit. PER CURIAM: Jason Lamon Kelly seeks to appeal the district court s order denying relief on his 28 U.S.C.A. § 2255 (West Supp. 2012) motion. judge The order is not appealable unless a circuit justice or issues a certificate § 2253(c)(1)(B) (2006). issue absent a of 28 U.S.C. A certificate of appealability will not substantial constitutional right. appealability. showing of the denial 28 U.S.C. § 2253(c)(2) (2006). of a 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 Cockrell, (2000); (2003). see Miller-El v. 537 U.S. 322, 336-38 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. 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 Kelly does not challenge the basis of the district court s decision but raises new issues on appeal. We generally do not consider new arguments raised for the first time on appeal. See United States v. Edwards, 666 F.3d 877, 887 (4th Cir. 2011). Exceptions to this general rule are made only in very limited (Continued) 2 deny a certificate of appealability and dismiss the appeal. dispense with contentions are oral argument adequately because presented in the the facts We and legal materials before this court and argument would not aid the decisional process. DISMISSED circumstances, such as raised issue[s] would fundamental miscarriage F.3d 246, 250 (4th Cir. do not apply here. where refusal to consider the newlybe plain error or would result in a of justice. Muth v. United States, 1 1993). We conclude that the exceptions 3