UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 13-6592
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
LEROY JOSEPH KELLY,
Defendant - Appellant.
Appeal from the United States District Court for the Western
District of North Carolina, at Charlotte. Richard L. Voorhees,
District Judge. (3:97-cr-00333-MOC-1; 3:00-cv-00002-RLV)
Submitted: August 22, 2013 Decided: August 26, 2013
Before MOTZ, DIAZ, and FLOYD, Circuit Judges.
Dismissed by unpublished per curiam opinion.
Leroy J. Kelly, Appellant Pro Se. C. Nicks Williams, OFFICE OF
THE UNITED STATES ATTORNEY, Charlotte, North Carolina, for
Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Leroy Joseph Kelly seeks to appeal the district
court’s order treating his Fed. R. Civ. P. 60(d) motion of
independent action as a successive 28 U.S.C.A. § 2255 (West
Supp. 2013) motion, and dismissing it on that basis. The order
is not appealable unless a circuit justice or judge issues a
certificate of appealability. 28 U.S.C. § 2253(c)(1)(B) (2006).
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) (2006). 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
(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 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 Kelly 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
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contentions are adequately presented in the materials before
this court and argument would not aid the decisional process.
DISMISSED
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