United States v. Burton

179 F. App'x 165

• Court: Court of Appeals for the Fourth Circuit
• Decided: May 3, 2006
• Docket: 05-7490
• Status: Unpublished

Opinion

UNPUBLISHED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Dismissed by unpublished per curiam opinion.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Unpublished opinions are not binding precedent in this circuit.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 -