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  • Kessler v. Boyette, 4th Cir. (2004)

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    Russell Brent Kessler, Jr. sought to appeal the district court's dismissal of his 28 U.S.C. § 2254 petition as time-barred. The Fourth Circuit Court of Appeals found that Kessler did not make the requisite showing to justify issuing a certificate of appealability. Specifically, Kessler did not demonstrate that reasonable jurists would find his constitutional claims debatable or that the district court's procedural rulings were debatable or wrong. As such, the Fourth Circuit denied Kessler's motion for a certificate of appealability and dismissed the appeal.

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    Filed: 2004-09-15 Precedential Status: Non-Precedential Docket: 04-7113

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    Russell Brent Kessler, Jr. sought to appeal the district court's dismissal of his 28 U.S.C. § 2254 petition as time-barred. The Fourth Circuit Court of Appeals found that Kessler did not make the requisite showing to justify issuing a certificate of appealability. Specifically, Kessler did not demonstrate that reasonable jurists would find his constitutional claims debatable or that the district court's procedural rulings were debatable or wrong. As such, the Fourth Circuit denied Kessler's motion for a certificate of appealability and dismissed the appeal.

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    Kessler v. Boyette, 4th Cir. (2004)

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    Scribd Government Docs
    Russell Brent Kessler, Jr. sought to appeal the district court's dismissal of his 28 U.S.C. § 2254 petition as time-barred. The Fourth Circuit Court of Appeals found that Kessler did not make the requisite showing to justify issuing a certificate of appealability. Specifically, Kessler did not demonstrate that reasonable jurists would find his constitutional claims debatable or that the district court's procedural rulings were debatable or wrong. As such, the Fourth Circuit denied Kessler's motion for a certificate of appealability and dismissed the appeal.

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    of 2

    UNPUBLISHED

    UNITED STATES COURT OF APPEALS


    FOR THE FOURTH CIRCUIT

    No. 04-7113

    RUSSELL BRENT KESSLER, JR.,


    Petitioner - Appellant,
    versus
    BONNIE
    BOYETTE,
    Superintendent,
    Correctional Institution,

    Nash
    Respondent - Appellee.

    Appeal from the United States District


    District of North Carolina, at Durham.
    District Judge. (CA-03-1115)

    Submitted:

    September 1, 2004

    Court for the Middle


    James A. Beaty, Jr.,

    Decided:

    September 15, 2004

    Before LUTTIG, MICHAEL, and MOTZ, Circuit Judges.

    Dismissed by unpublished per curiam opinion.

    Russell Brent Kessler, Jr., Appellant Pro Se.


    Clarence Joe
    DelForge, III, NORTH CAROLINA DEPARTMENT OF JUSTICE, Raleigh, North
    Carolina, for Appellee.

    Unpublished opinions are not binding precedent in this circuit.


    See Local Rule 36(c).

    PER CURIAM:
    Russell Brent Kessler, Jr., seeks to appeal the district
    courts order granting the Governments motion to dismiss Kesslers
    28 U.S.C. 2254 (2000) petition as time-barred.

    The order is not

    appealable unless a circuit justice or judge issues a certificate


    of appealability. 28 U.S.C. 2253(c)(1) (2000). 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) (2000).

    A prisoner satisfies this standard by demonstrating that reasonable


    jurists would find that his constitutional claims are debatable and
    that any dispositive procedural rulings by the district court are
    also debatable or wrong.

    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 Kessler has not made the
    requisite showing.

    Accordingly, we deny Kesslers motion for 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 the court and argument
    would not aid the decisional process.

    DISMISSED

    - 2 -

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