United States of America v. Kalvin Marshall

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 12-7605
UNITED STATES OF AMERICA,
Plaintiff – Appellee,
v.
KALVIN MARSHALL,
Defendant - Appellant.
Appeal from the United States District Court for the Eastern
District of Virginia, at Richmond. Henry E. Hudson, District
Judge. (3:02-cr-00225-HEH-2; 3:12-cv-00480-HEH)
Submitted: January 17, 2013 Decided: January 22, 2013
Before GREGORY, SHEDD, and KEENAN, Circuit Judges.
Dismissed by unpublished per curiam opinion.
Kalvin Marshall, Appellant Pro Se. David Thomas Maguire,
Assistant United States Attorney, Richmond, Virginia, for
Appellee.
Unpublished opinions are not binding precedent in this circuit.

-- 1 of 3 --

2
PER CURIAM:
Kalvin Marshall seeks to appeal the district court’s
order construing his Fed. R. Civ. P. 60(b) motion as a 28
U.S.C.A. § 2255 (West Supp. 2012) motion and dismissing it as
successive. The order is not appealable unless a circuit
justice or judge issues a certificate of appealability. 28
U.S.C. § 2253(c)(1) (2006); Reid v. Angelone, 369 F.3d 363, 369
(4th Cir. 2004). 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). A prisoner satisfies
this standard by demonstrating that reasonable jurists would
find both that the district court’s assessment of his
constitutional claims is debatable or wrong and that any
dispositive procedural ruling by the district court is likewise
debatable. See Miller-El v. Cockrell, 537 U.S. 322, 336
(2003); Slack v. McDaniel, 529 U.S. 473, 484 (2000); Rose v.
Lee, 252 F.3d 676, 683 (4th Cir.2001). We have independently
reviewed the record and conclude that Marshall 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

-- 2 of 3 --

3
before this court and argument would not aid the decisional
process.
DISMISSED

-- 3 of 3 --