United States v. Jermaine McKiver

• Court: Court of Appeals for the Fourth Circuit
• Decided: January 3, 2019
• Docket: 18-6863
• Status: Unpublished

Opinion

UNPUBLISHED

UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT

No. 18-6863

UNITED STATES OF AMERICA,

Plaintiff - Appellee,

v.

JERMAINE LATIMER MCKIVER,

Defendant - Appellant.

Appeal from the United States District Court for the Middle District of North Carolina, at Greensboro. William L. Osteen, Jr., District Judge. (1:12-cr-00071-WO-1)

Submitted: November 30, 2018 Decided: January 3, 2019

Before KEENAN and RICHARDSON, Circuit Judges, and SHEDD, Senior Circuit Judge.

Dismissed by unpublished per curiam opinion.

Jermaine Latimer McKiver, Appellant Pro Se.

Unpublished opinions are not binding precedent in this circuit.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

Jermaine Latimer McKiver seeks to appeal the district court’s order accepting the

recommendation of the magistrate judge and denying McKiver’s Fed. R. Civ. P. 60(b)

motion for reconsideration of the district court’s order denying relief on his 28 U.S.C.

§ 2255 (2012) 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) (2012); Reid v. Angelone, 369

F.3d 363, 369 (4th Cir. 2004), abrogated in part by United States v. McRae, 793 F.3d

392, 400 & n.7 (4th Cir. 2015). 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)

(2012). 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 McKiver 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 this court and argument

would not aid the decisional process.

DISMISSED