US v. Larry Berry

Filing

UNPUBLISHED PER CURIAM OPINION filed. Motion disposition in opinion--updating certificate of appealability status Originating case number: 5:08-cr-00247-FL-1,5:12-cv-00732-FL,5:10-cv-00227-FL Copies to all parties and the district court/agency. [999550147]. Mailed to: Larry Lavonne Berry. [14-7636]

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UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT

No. 14-7636

UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
LARRY LAVONNE BERRY,
Defendant - Appellant.

Appeal from the United States District Court for the Eastern
District of North Carolina, at Raleigh.
Louise W. Flanagan,
District Judge. (5:08-cr-00247-FL-1; 5:12-cv-00732-FL; 5:10-cv00227-FL)

Submitted:

March 17, 2015

Decided:

March 20, 2015

Before WILKINSON and KING, Circuit Judges, and DAVIS, Senior
Circuit Judge.

Dismissed by unpublished per curiam opinion.

Larry Lavonne Berry, Appellant Pro Se. Edward D. Gray, Jennifer
P. May-Parker, Assistant United States Attorneys, Raleigh, North
Carolina, for Appellee.

Unpublished opinions are not binding precedent in this circuit.

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PER CURIAM:
Larry Lavonne Berry seeks to appeal the district court’s
order accepting the magistrate judge’s recommendation to deny
relief on his 28 U.S.C. § 2255 (2012) motion.

The order is not

appealable

judge

unless

a

circuit

certificate of appealability.
A

certificate

of

justice

or

issues

a

28 U.S.C. § 2253(c)(1)(B) (2012).

appealability

will

not

issue

absent

“a

substantial showing of the denial of a constitutional right.”
28 U.S.C. § 2253(c)(2) (2012).
relief

on

the

demonstrating
district

merits,
that

court’s

debatable

or

a

When the district court denies

prisoner

reasonable

assessment

wrong.

Slack

satisfies

jurists

this

would

of

the

v.

McDaniel,

standard

find

that

the

claims

constitutional
529

by

is

473,

484

U.S.

(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.
Limiting

our

review

to

the

issues

raised

in

Berry’s

objections to the magistrate judge’s report and recommendation
and his informal brief, see Wright v. Collins, 766 F.2d 841,
845–46 (4th Cir. 1985); 4th Cir. R. 34(b), we conclude that
Berry has not made the requisite showing.
2

Accordingly, we deny

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a

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certificate

dispense

of

with

contentions

are

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appealability

oral

argument

adequately

and

dismiss

because

presented

in

the
the

the

appeal.

facts

We

and

legal

materials

before

this court and argument would not aid the decisional process.
DISMISSED

3