United States v. Kevin Elrod

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 21-6753
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
KEVIN EARL ELROD,
Defendant - Appellant.
Appeal from the United States District Court for the Eastern District of North Carolina, at
Greenville. Louise W. Flanagan, District Judge. (4:18-cr-00034-FL-1; 4:20-cv-00156-
FL)
Submitted: August 24, 2021 Decided: August 27, 2021
Before NIEMEYER and HARRIS, Circuit Judges, and SHEDD, Senior Circuit Judge.
Dismissed by unpublished per curiam opinion.
Kevin Earl Elrod, Appellant Pro Se.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Kevin Earl Elrod seeks to appeal the district court’s order adopting the magistrate
judge’s recommendation and denying relief on Elrod’s 28 U.S.C. § 2255 motion. The
order is not appealable unless a circuit justice or judge issues a certificate of appealability.
See 28 U.S.C. § 2253(c)(1)(B). 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). When
the district court denies relief on the merits, a prisoner satisfies this standard by
demonstrating that reasonable jurists could find the district court’s assessment of the
constitutional claims debatable or wrong. See Buck v. Davis, 137 S. Ct. 759, 773-74 (2017).
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. Gonzalez v. Thaler, 565 U.S. 134,
140-41 (2012) (citing Slack v. McDaniel, 529 U.S. 473, 484 (2000)).
We have independently reviewed the record and conclude that Elrod 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
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