United States of America v. Kevin Smith

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 22-6586
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
KEVIN SMITH,
Defendant - Appellant.
Appeal from the United States District Court for the Western District of North Carolina, at
Charlotte. Robert J. Conrad, Jr., District Judge. (3:14-cr-00017-RJC-DCK-6; 3:19-cv-
00018-RJC)
Submitted: November 22, 2022 Decided: November 29, 2022
Before HARRIS and RICHARDSON, Circuit Judges, and TRAXLER, Senior Circuit
Judge.
Dismissed by unpublished per curiam opinion.
Kevin Smith, Appellant Pro Se.
Unpublished opinions are not binding precedent in this circuit.

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PER CURIAM:
Kevin Smith seeks to appeal the district court’s order construing his request for
judicial notice as a 28 U.S.C. § 2255 motion and dismissing it as successive and
unauthorized. 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, as here, 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 Smith 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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