US v. Samuel Kerr, II


UNPUBLISHED PER CURIAM OPINION filed.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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Appeal: 16-6641 Doc: 15 Filed: 01/26/2017 Pg: 1 of 3 UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 16-6641 UNITED STATES OF AMERICA, Plaintiff - Appellee, v. SAMUEL KEITH KERR, II, Defendant -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 Dismissed by unpublished per curiam opinion.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 Unpublished opinions are not binding precedent in this circuit. Appeal: 16-6641 Doc: 15 Filed: 01/26/2017 Pg: 2 of 3 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 Appeal: 16-6641 Doc: 15 Filed: 01/26/2017 Pg: 3 of 3 presented in the materials before this court and argument would not aid the decisional process. DISMISSED 3

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