# United States v. Brown

> Court of Appeals for the Fourth Circuit · July 25, 2007 · 234 F. App'x 162

URL: https://www.frixlaw.com/law-library/cases/1023232

## Case

- **Full name:** Michael Lynn BROWN, Petitioner—Appellant, v. Tracey S. RAY, Warden, Respondent—Appellee
- **Court:** Court of Appeals for the Fourth Circuit
- **Decided:** July 25, 2007
- **Citations:** 234 F. App'x 162
- **Precedential status:** Unpublished
- **Opinion:** Opinion
- **Judges:** Motz, Gregory, Wilkins
- **Cited by:** 0 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/1023232

## Opinion text

UNPUBLISHED

UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT

No. 07-6596

UNITED STATES OF AMERICA,

Plaintiff - Appellee,

versus

KERMIT C. BROWN, a/k/a Brian Mackey, a/k/a
Destruction, a/k/a Bear,

Defendant - Appellant.

Appeal from the United States District Court for the Eastern
District of Virginia, at Norfolk. Raymond A. Jackson, District
Judge. (2:98-cr-00047-JBF)

Submitted: July 19, 2007 Decided: July 25, 2007

Before MOTZ and GREGORY, Circuit Judges, and WILKINS, Senior
Circuit Judge.

Dismissed by unpublished per curiam opinion.

Kermit C. Brown, Appellant Pro Se. Darryl James Mitchell, Special
Assistant United States Attorney, Norfolk, Virginia, for Appellee.

Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:

Kermit C. Brown seeks to appeal the district court’s

orders construing his “Petitioner’s Request for Judicial Assistance

and Instructions on Avenue for Correction of Violation of His

Substantial Rights” as a successive 28 U.S.C. § 2255 (2000) motion,

and dismissing it on that basis, and denying his subsequent motion

for reconsideration. Brown’s motion for reconsideration was not

filed within ten days of the district court’s order dismissing his

request for judicial assistance as a successive § 2255 motion as

required by Fed. R. Civ. P. 59(e). The time for appealing that

order expired before he filed his notice of appeal on April 3,

2007, and therefore only the denial of the motion for

reconsideration is preserved for appeal. See Alston v. MCI

Commc’ns Corp., 84 F.3d 705, 706 (4th Cir. 1996) (only a timely

Rule 59(e) motion tolls time period for filing notice of appeal);

Fed. R. App. P. 4(a)(4)(A)(iv)-(vi).

The order denying reconsideration 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 any assessment of the constitutional claims

by the district court is debatable or wrong and that any

- 2 -
dispositive procedural ruling by the district court is likewise

debatable. Miller-El v. Cockrell, 537 U.S. 322, 336-38 (2003);

Slack v. McDaniel, 529 U.S. 473, 484 (2000); Rose v. Lee, 252 F.3d

676, 683-84 (4th Cir. 2001). We have independently reviewed the

record and conclude that Brown has not made the requisite showing.

Accordingly, we deny a certificate of appealability, deny

leave to proceed in forma pauperis, 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

- 3 -

---

Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/1023232. Public record. Not legal advice.