UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 13-6323
UNITED STATES OF AMERICA,
Plaintiff – Appellee,
v.
KENNETH D. BEVERLY,
Defendant - Appellant.
Appeal from the United States District Court for the Eastern
District of Virginia, at Richmond. Henry E. Hudson, District
Judge. (3:05-cr-00526-HEH-1; 3:13-cv-00060)
Submitted: June 13, 3013 Decided: June 17, 2013
Before NIEMEYER, KING, and FLOYD, Circuit Judges.
Dismissed by unpublished per curiam opinion.
Kenneth D. Beverly, Appellant Pro Se. Steven T. Buck, OFFICE OF
THE ATTORNEY GENERAL OF VIRGINIA, Gurney Wingate Grant, II,
Assistant United States Attorney, Gregg Robert Nivala, OFFICE OF
THE UNITED STATES ATTORNEY, Richmond, Virginia, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Kenneth D. Beverly seeks to appeal the district
court’s order construing his Fed. R. Crim. P. 36 motion as a 28
U.S.C.A. § 2255 (West Supp. 2012) motion, and denying it as
successive. Because we find that the district court correctly
construed the 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 Beverly 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
2
argument because the facts and legal contentions are adequately
presented in the materials before this court and argument would
not aid the decisional process.
DISMISSED
3