US v. Kenneth Beverly, No. 13-6323 (4th Cir. 2013)

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UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 13-6323 UNITED STATES OF AMERICA, Plaintiff Appellee, v. KENNETH D. BEVERLY, Defendant - Appellant. Appeal from the United States District Court for the Eastern District of Virginia, at Richmond. Henry E. Hudson, District Judge. (3:05-cr-00526-HEH-1; 3:13-cv-00060) Submitted: June 13, 3013 Decided: June 17, 2013 Before NIEMEYER, KING, and FLOYD, Circuit Judges. Dismissed by unpublished per curiam opinion. Kenneth D. Beverly, Appellant Pro Se. Steven T. Buck, OFFICE OF THE ATTORNEY GENERAL OF VIRGINIA, Gurney Wingate Grant, II, Assistant United States Attorney, Gregg Robert Nivala, OFFICE OF THE UNITED STATES ATTORNEY, Richmond, Virginia, for Appellee. Unpublished opinions are not binding precedent in this circuit. PER CURIAM: Kenneth D. Beverly seeks to appeal the district court s order construing his Fed. R. Crim. P. 36 motion as a 28 U.S.C.A. § 2255 successive. construed (West Supp. 2012) motion, and denying it as Because we find that the district court correctly the motion, the order is not appealable unless a circuit justice or judge issues a certificate of appealability. 28 U.S.C. § 2253(c)(1)(B) (2006). A certificate of appealability will not issue absent a substantial showing of the denial of a constitutional right. (2006). 28 U.S.C. § 2253(c)(2) When the district court denies relief on the merits, a prisoner satisfies this jurists would reasonable standard find by that demonstrating the district that 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). denies relief demonstrate both on procedural that the When the district court grounds, dispositive the prisoner procedural ruling must 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 Beverly has not made the requisite showing. Accordingly, we deny a certificate of appealability, deny leave to proceed in forma pauperis, and dismiss the appeal. 2 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 3

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