US v. Leroy Kelly, No. 13-6592 (4th Cir. 2013)
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UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 13-6592 UNITED STATES OF AMERICA, Plaintiff - Appellee, v. LEROY JOSEPH KELLY, Defendant - Appellant.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. Richard L. Voorhees, District Judge. (3:97-cr-00333-MOC-1; 3:00-cv-00002-RLV) Submitted: August 22, 2013 Decided: August 26, 2013 Before MOTZ, DIAZ, and FLOYD, Circuit Judges. Dismissed by unpublished per curiam opinion. Leroy J. 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 Unpublished opinions are not binding precedent in this circuit.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 independent Joseph treating action as Kelly his a seeks Fed. R. successive to appeal Civ. 28 P. the 60(d) U.S.C.A. district motion § 2255 Supp. 2013) motion, and dismissing it on that basis. of (West The order is not appealable unless a circuit justice or judge issues a certificate of appealability. A certificate of 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 this court and argument would not aid the decisional process. DISMISSED 3
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