United States v. Thomas Kearney

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 12-7161
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
THOMAS TRAY SHARMONE KEARNEY,
Defendant - Appellant.
Appeal from the United States District Court for the Eastern
District of North Carolina, at Elizabeth City. Terrence W.
Boyle, District Judge. (2:04-cr-00015-BO-1; 2:09-cv-55-BO)
Submitted: November 2, 2012 Decided: November 6, 2012
Before WILKINSON, KEENAN, and THACKER, Circuit Judges.
Dismissed by unpublished per curiam opinion.
Thomas Tray Sharmone Kearney, Appellant Pro Se. Seth Morgan
Wood, OFFICE OF THE UNITED STATES ATTORNEY, Raleigh, North
Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Thomas Tray Sharmone Kearney seeks to appeal the
district court’s order construing his “Motion to Protect the
Constitutional Rights of the Indicted from Void Judgment” as a
successive 28 U.S.C.A. § 2255 (West Supp. 2012) motion and
dismissing it on that basis. The order is not appealable unless
a circuit justice or judge issues a certificate of
appealability. 28 U.S.C. § 2253(c)(1)(B) (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). 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 Kearney 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
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contentions are adequately presented in the materials before the
court and argument would not aid the decisional process.
DISMISSED
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