United States v. Burton

UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 05-7490 UNITED STATES OF AMERICA, Plaintiff - Appellee, versus KEVIN V. BURTON, Defendant - Appellant. Appeal from the United States District Court for the Eastern District of Virginia, at Richmond. Henry E. Hudson, District Judge. (CR-03-6; CA-04-524-3) Submitted: April 27, 2006 Decided: May 3, 2006 Before NIEMEYER and MOTZ, Circuit Judges, and HAMILTON, Senior Circuit Judge. Dismissed by unpublished per curiam opinion. Kevin V. Burton, Appellant Pro Se. Charles Everett James, Jr., OFFICE OF THE UNITED STATES ATTORNEY, Richmond, Virginia, for Appellee. Unpublished opinions are not binding precedent in this circuit. See Local Rule 36(c). PER CURIAM: Kevin V. Burton seeks to appeal the district court’s orders in this 28 U.S.C. § 2255 (2000) proceeding dismissing several of Burton’s claims, referring his remaining claims to a magistrate judge, adopting the magistrate judge’s recommendation to deny relief on the remaining claims following an evidentiary hearing and denying Burton’s Fed. R. Civ. P. 59(e) motion for reconsideration. These orders are not appealable unless a circuit justice or judge issues a certificate of appealability. 28 U.S.C. § 2253(c)(1) (2000). 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) (2000). A prisoner satisfies this standard by demonstrating that reasonable jurists would find that the district court’s assessment of his constitutional claims is debatable or wrong and that any dispositive procedural ruling by the district court is likewise debatable. See Miller-El v. Cockrell, 537 U.S. 322, 336-38 (2003); Slack v. McDaniel, 529 U.S. 473, 484 (2000); Rose v. Lee, 252 F.3d 676, 683 (4th Cir. 2001). We have independently reviewed the record and conclude that Burton has not made the requisite showing. Accordingly, we deny a certificate of appealability and dismiss the appeal. We dispense with oral argument because the facts and legal contentions are - 2 - adequately presented in the materials before the court and argument would not aid the decisional process. DISMISSED - 3 -