United States of America v. Kenneth D. Beverly

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 09-7094
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
KENNETH D. BEVERLY,
Defendant - Appellant.
Appeal from the United States District Court for the Eastern
District of Virginia, at Richmond. Henry E. Hudson, District
Judge. (3:09-cv-00065-HEH)
Submitted: January 26, 2010 Decided: February 16, 2010
Before MOTZ, KING, and DUNCAN, Circuit Judges.
Affirmed by unpublished per curiam opinion.
Kenneth D. Beverly, Appellant Pro Se.
Unpublished opinions are not binding precedent in this circuit.

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PER CURIAM:
Kenneth D. Beverly appeals from the district court’s
order dismissing without prejudice his motion for return of
property for failure to pay the initial partial filing fee. In
the only claim raised on appeal, Beverly asserts that his motion
was filed pursuant to 28 U.S.C.A. § 2255 (West Supp. 2009) and,
thus, not subject to a filing fee. A review of the record
discloses that Beverly’s motion did not reference § 2255.
Moreover, a motion for return of property is a civil action
subject to a filing fee. See United States v. Garcia, 65 F.3d
17, 18 n.2 (4th Cir. 1995); United States v. Howell, 354 F.3d
693, 695 (7th Cir. 2004). Accordingly, we affirm the judgment
of the district court. We deny Beverly’s motions to place the
case in abeyance. 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

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