United States v. Kenneth Harvey

                             UNPUBLISHED

                  UNITED STATES COURT OF APPEALS
                      FOR THE FOURTH CIRCUIT


                             No. 11-6205


UNITED STATES OF AMERICA,

                      Plaintiff – Appellee,

          v.

KENNETH N. HARVEY,

                      Defendant - Appellant.



Appeal from the United States District Court for the Western
District of Virginia, at Charlottesville.     Norman K. Moon,
Senior District Judge. (3:06-cr-00023-nkm-mfu-1; 3:09-cv-80185-
nkm-mfu)


Submitted:   July 21, 2011                    Decided:    July 25, 2011


Before NIEMEYER and     GREGORY,   Circuit   Judges,     and   HAMILTON,
Senior Circuit Judge.


Dismissed by unpublished per curiam opinion.


Kenneth N. Harvey, Appellant Pro Se. Edward J. Loya, Jr., UNITED
STATES DEPARTMENT OF JUSTICE, Washington, D.C., for Appellee.


Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:

            Kenneth N. Harvey seeks to appeal the district court’s

order denying relief on his 28 U.S.C.A. § 2255 (West Supp. 2011)

motion.    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 Harvey 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 adequately presented in the materials




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before   the   court   and   argument   would   not   aid   the   decisional

process.



                                                                   DISMISSED




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