US v. Leroy Kelly

Filing

UNPUBLISHED PER CURIAM OPINION filed. Motion disposition in opinion--denying for certificate of appealability Originating case number: 3:97-cr-00333-MOC-1,3:00-cv-00002-RLV Copies to all parties and the district court/agency. [999180068]. Mailed to: Leroy Kelly. [13-6592]

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UNPUBLISHED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Dismissed by unpublished per curiam opinion.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Unpublished opinions are not binding precedent in this circuit.

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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

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contentions

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are

adequately

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presented

in

the

materials

before

this court and argument would not aid the decisional process.

DISMISSED

3