US v. Kenneth McClees, II
Filing
UNPUBLISHED PER CURIAM OPINION filed. Originating case number: 2:12-cr-00011-FL-1,2:14-cv-00029-FL. Copies to all parties and the district court/agency. [999838809]. Mailed to: Kenneth McClees, II. [16-6158]
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UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 16-6158
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
KENNETH CADWELL MCCLEES, II,
Defendant - Appellant.
Appeal from the United States District Court for the Eastern
District of North Carolina, at Elizabeth City.
Louise W.
Flanagan, District Judge.
(2:12-cr-00011-FL-1; 2:14-cv-00029FL)
Submitted:
May 26, 2016
Decided:
June 1, 2016
Before TRAXLER, Chief Judge, and NIEMEYER and FLOYD, Circuit
Judges.
Dismissed by unpublished per curiam opinion.
Kenneth Cadwell McClees, II, Appellant Pro Se.
Denise Walker,
Seth Morgan Wood, OFFICE OF THE UNITED STATES ATTORNEY, Raleigh,
North Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
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PER CURIAM:
Kenneth Cadwell McClees, II, seeks to appeal the district
court’s
order
accepting
the
recommendation
of
the
magistrate
judge and dismissing as untimely his 28 U.S.C. § 2255 (2012)
motion.
judge
The order is not appealable unless a circuit justice or
issues
a
certificate
§ 2253(c)(1)(B) (2012).
issue
absent
“a
of
28
U.S.C.
A certificate of appealability will not
substantial
constitutional right.”
appealability.
showing
of
the
denial
28 U.S.C. § 2253(c)(2) (2012).
of
a
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
Cockrell,
(2000);
(2003).
see
Miller-El
v.
537
U.S.
322,
336-38
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 484-85.
We have independently reviewed the record and conclude that
McClees 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
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