United States v. Brooks ( 2010 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 09-7713
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
KENNETH LAMONT BROOKS, a/k/a Kenny,
Defendant - Appellant.
Appeal from the United States District Court for the District of
South Carolina, at Charleston. Cameron McGowan Currie, District
Judge. (3:04-cr-00119-CMC-1)
Submitted: February 19, 2010 Decided: March 2, 2010
Before WILKINSON, MOTZ, and SHEDD, Circuit Judges.
Affirmed in part; dismissed in part by unpublished per curiam
opinion.
Kenneth Lamont Brooks, Appellant Pro Se. Stacey Denise Haynes,
Assistant United States Attorney, Columbia, South Carolina, for
Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Kenneth Lamont Brooks appeals the district court’s
order denying his petition for a writ of error coram nobis or
audita querela, construing the petition, in part, as a
successive 28 U.S.C.A. § 2255 (West Supp. 2009) motion, and
dismissing that portion of the petition for lack of
jurisdiction.
We have reviewed the record and find no reversible
error. Accordingly, we affirm the district court’s order to the
extent that it denied the requested writs. See United States v.
Brooks, No. 3:04-cr-00119-CMC-1 (D.S.C. Aug. 24, 2009).
However, the portion of the district court’s order
construing Brooks’ petition as a successive § 2255 motion and
dismissing it for lack of jurisdiction is not appealable unless
a circuit justice or judge issues a certificate of
appealability. 28 U.S.C. § 2253(c)(1) (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). 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 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);
2
Rose v. Lee, 252 F.3d 676, 683-84 (4th Cir. 2001). We have
reviewed the record and conclude that Brooks 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 the court and argument would
not aid the decisional process.
AFFIRMED IN PART;
DISMISSED IN PART
3