United States v. Brown , 234 F. App'x 162 ( 2007 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 07-6596
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
KERMIT C. BROWN, a/k/a Brian Mackey, a/k/a
Destruction, a/k/a Bear,
Defendant - Appellant.
Appeal from the United States District Court for the Eastern
District of Virginia, at Norfolk. Raymond A. Jackson, District
Judge. (2:98-cr-00047-JBF)
Submitted: July 19, 2007 Decided: July 25, 2007
Before MOTZ and GREGORY, Circuit Judges, and WILKINS, Senior
Circuit Judge.
Dismissed by unpublished per curiam opinion.
Kermit C. Brown, Appellant Pro Se. Darryl James Mitchell, Special
Assistant United States Attorney, Norfolk, Virginia, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Kermit C. Brown seeks to appeal the district court’s
orders construing his “Petitioner’s Request for Judicial Assistance
and Instructions on Avenue for Correction of Violation of His
Substantial Rights” as a successive 28 U.S.C. § 2255 (2000) motion,
and dismissing it on that basis, and denying his subsequent motion
for reconsideration. Brown’s motion for reconsideration was not
filed within ten days of the district court’s order dismissing his
request for judicial assistance as a successive § 2255 motion as
required by Fed. R. Civ. P. 59(e). The time for appealing that
order expired before he filed his notice of appeal on April 3,
2007, and therefore only the denial of the motion for
reconsideration is preserved for appeal. See Alston v. MCI
Commc’ns Corp., 84 F.3d 705, 706 (4th Cir. 1996) (only a timely
Rule 59(e) motion tolls time period for filing notice of appeal);
Fed. R. App. P. 4(a)(4)(A)(iv)-(vi).
The order denying reconsideration is 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 any assessment of the constitutional claims
by the district court is debatable or wrong and that any
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dispositive procedural ruling by the district court is likewise
debatable. 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, 683-84 (4th Cir. 2001). We have independently reviewed the
record and conclude that Brown 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 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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