US v. Kenneth B. Kubinski

Filing

UNPUBLISHED PER CURIAM OPINION filed. Originating case number: 3:93-cr-00028-H-1,5:97-cv-00973-H Copies to all parties and the district court/agency. [998786645].. [11-6950]

Appeal: 11-6950

Document: 19

Date Filed: 02/13/2012

Page: 1 of 3

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT

No. 11-6950

UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
KENNETH B. KUBINSKI,
Defendant - Appellant.

Appeal from the United States District Court for the Eastern
District of North Carolina, at Fayetteville. Malcolm J. Howard,
Senior District Judge. (3:93-cr-00028-H-1; 5:97-cv-00973-H)

Submitted:

February 9, 2012

Decided:

February 13, 2012

Before WILKINSON, AGEE, and FLOYD, Circuit Judges.

Dismissed by unpublished per curiam opinion.

Dallas Craig Hughes, LAW OFFICES OF D. CRAIG HUGHES, Houston,
Texas, for Appellant.
Seth Morgan Wood, OFFICE OF THE UNITED
STATES ATTORNEY, Raleigh, North Carolina, for Appellee.

Unpublished opinions are not binding precedent in this circuit.

Appeal: 11-6950

Document: 19

Date Filed: 02/13/2012

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PER CURIAM:
Kenneth
court’s

order

B.

Kubinski

denying

his

seeks

Fed.

R.

to

appeal

Civ.

P.

the

60(b)

district

motion

for

reconsideration of the district court’s order denying relief on
his 28 U.S.C.A. § 2255 (West Supp. 2011) motion.
not

appealable

unless

a

circuit

certificate of appealability.
A certificate

of

justice

or

The order is

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
debatable

merits,
that

court’s
or

a

When the district court denies

prisoner

reasonable

assessment

wrong.

Slack

satisfies

jurists

this

would

of

the

v.

McDaniel,

standard

find

that

U.S.

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

a

debatable

claim of the denial of a constitutional right.

Slack, 529 U.S.

at

the

484-85.

conclude

that

We

have

Kubinski

independently
has

not

reviewed

made

the

record

requisite

and

showing.

Accordingly, we deny a certificate of appealability and dismiss
the appeal.

We dispense with oral argument because the facts

and legal contentions are adequately presented in the materials
2

Appeal: 11-6950

before

Document: 19

the

court

Date Filed: 02/13/2012

and

argument

would

Page: 3 of 3

not

aid

the

decisional

process.
DISMISSED

3