United States v. Eugene Brinson

                            UNPUBLISHED

                  UNITED STATES COURT OF APPEALS
                      FOR THE FOURTH CIRCUIT


                            No. 12-7147


UNITED STATES OF AMERICA,

                Plaintiff - Appellee,

          v.

EUGENE KENNETH BRINSON,

                Defendant - Appellant.



Appeal from the United States District Court for the Eastern
District of Virginia, at Richmond.    Henry E. Hudson, District
Judge. (3:06-cr-00107-HEH-1; 3:12-cv-00231-HEH)


Submitted:   September 11, 2012          Decided:   September 14, 2012


Before NIEMEYER, SHEDD, and AGEE, Circuit Judges.


Dismissed by unpublished per curiam opinion.


Eugene Kenneth Brinson, Appellant Pro Se.       Roderick Charles
Young, Assistant United States Attorney, Richmond, Virginia, for
Appellee.


Unpublished opinions are not binding precedent in this circuit.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

             Eugene Kenneth Brinson seeks to appeal the district

court’s order construing his motion to reopen as a successive 28

U.S.C.A. § 2255 (West Supp. 2012) motion and dismissing it for

lack of jurisdiction.          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 Brinson 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 before the

court and argument would not aid the decisional process.

                                                                          DISMISSED

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