United States v. Kyheim Tucker , 552 F. App'x 205 ( 2013 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 13-7057
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
KYHEIM DELANGO TUCKER, a/k/a Paso,
Defendant - Appellant.
Appeal from the United States District Court for the Eastern
District of Virginia, at Newport News. Rebecca Beach Smith,
Chief District Judge. (4:09-cr-00081-RBS-FBS-11; 4:13-cv-00033-
RBS)
Submitted: November 5, 2013 Decided: November 12, 2013
Before DUNCAN, AGEE, and KEENAN, Circuit Judges.
Dismissed by unpublished per curiam opinion.
Kyheim Delango Tucker, Appellant Pro Se. Eric Matthew Hurt,
Lisa Rae McKeel, Brian James Samuels, Howard Jacob Zlotnick,
Assistant United States Attorneys, Newport News, Virginia, for
Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Kyheim Delango Tucker seeks to appeal the district
court’s order dismissing as untimely his 28 U.S.C.A. § 2255
(West Supp. 2013) 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) (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).
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 Tucker 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
2
contentions are adequately presented in the materials before
this court and argument would not aid the decisional process.
DISMISSED
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