US v. Kenneth Beverly

Filing

UNPUBLISHED PER CURIAM OPINION filed. Motion disposition in opinion--denying Motion to proceed in forma pauperis (FRAP 24) [999070226-2] Originating case number: 3:05-cr-00526-HEH-1,3:13-cv-00060 Copies to all parties and the district court/agency. [999130974]. Mailed to: Kenneth Beverly. [13-6323]

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UNPUBLISHED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Dismissed by unpublished per curiam opinion.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Unpublished opinions are not binding precedent in this circuit.

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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

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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