United States v. Larry Berry ( 2015 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 14-7636
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
LARRY LAVONNE BERRY,
Defendant - Appellant.
Appeal from the United States District Court for the Eastern
District of North Carolina, at Raleigh. Louise W. Flanagan,
District Judge. (5:08-cr-00247-FL-1; 5:12-cv-00732-FL; 5:10-cv-
00227-FL)
Submitted: March 17, 2015 Decided: March 20, 2015
Before WILKINSON and KING, Circuit Judges, and DAVIS, Senior
Circuit Judge.
Dismissed by unpublished per curiam opinion.
Larry Lavonne Berry, Appellant Pro Se. Edward D. Gray, Jennifer
P. May-Parker, Assistant United States Attorneys, Raleigh, North
Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Larry Lavonne Berry seeks to appeal the district court’s
order accepting the magistrate judge’s recommendation to deny
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).
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.
Limiting our review to the issues raised in Berry’s
objections to the magistrate judge’s report and recommendation
and his informal brief, see Wright v. Collins, 766 F.2d 841,
845–46 (4th Cir. 1985); 4th Cir. R. 34(b), we conclude that
Berry has not made the requisite showing. Accordingly, we deny
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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
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