US v. Samuel Kerr, II

Filing

UNPUBLISHED PER CURIAM OPINION filed. Motion disposition in opinion--denying Motion to proceed in forma pauperis (FRAP 24) [999851900-2] Originating case number: 5:08-cr-00302-F-1,5:14-cv-00262-F Copies to all parties and the district court/agency. [1000010819]. Mailed to: Samuel Kerr. [16-6641]

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UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT

No. 16-6641

UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
SAMUEL KEITH KERR, II,
Defendant - Appellant.

Appeal from the United States District Court for the Eastern
District of North Carolina, at Raleigh.
James C. Fox, Senior
District Judge. (5:08-cr-00302-F-1; 5:14-cv-00262-F)

Submitted:

January 9, 2017

Decided:

January 26, 2017

Before GREGORY, Chief Judge, THACKER, Circuit Judge, and DAVIS,
Senior Circuit Judge.

Dismissed by unpublished per curiam opinion.

Samuel Keith Kerr, II, Appellant Pro Se.
Ethan A. Ontjes,
Assistant United States Attorney, 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Unpublished opinions are not binding precedent in this circuit.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:
Samuel Keith Kerr, II, seeks to appeal the district court’s
order denying relief on his 28 U.S.C. § 2255 (2012) motion.

The

order is not appealable unless a circuit justice or judge issues
a

certificate

(2012).

of

appealability.

28

U.S.C.

§ 2253(c)(1)(B)

A certificate of 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

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
Kerr has not made the requisite showing.

Accordingly, we deny a

certificate of appealability, deny leave to proceed in forma
pauperis,

and

dismiss

the

appeal.

We

dispense

with

oral

argument because the facts and legal contentions are adequately

2

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presented in the materials before this court and argument would
not aid the decisional process.
DISMISSED

3