Leroy Kelly v. Virginia Dept of Corrections, No. 18-6297 (4th Cir. 2018)

Annotate this Case
Download PDF
UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 18-6297 LEROY J. KELLY, Petitioner - Appellant, v. VIRGINIA DEPARTMENT OF CORRECTIONS, Respondent - Appellee. Appeal from the United States District Court for the Eastern District of Virginia, at Richmond. Roderick Charles Young, Magistrate Judge. (3:16-cv-00932-RCY) Submitted: July 31, 2018 Before TRAXLER, DUNCAN, and DIAZ, Circuit Judges. Dismissed by unpublished per curiam opinion. Leroy Joseph Kelly, Appellant Pro Se. Unpublished opinions are not binding precedent in this circuit. Decided: August 27, 2018 PER CURIAM: Leroy Joseph Kelly seeks to appeal the magistrate judge’s order denying relief without prejudice on his 28 U.S.C. § 2254 (2012) petition. * The order is not appealable unless a circuit justice or judge issues a certificate of appealability. See 28 U.S.C. § 2253(c)(1)(A) (2012). A certificate of appealability will not issue absent “a substantial showing of the denial of a constitutional right.” 28 U.S.C. § 2253(c)(2) (2012). 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 (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 petition 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 deny a certificate of appealability, deny leave to proceed in forma pauperis, and dismiss the appeal. 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 * The parties consented to proceed before a magistrate judge pursuant to 28 U.S.C. § 636(c) (2012). 2