United States v. Irving , 304 F. App'x 165 ( 2008 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 08-8124
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
PHILLIP AUBREY IRVING,
Defendant - Appellant.
Appeal from the United States District Court for the Western
District of Virginia, at Roanoke. James C. Turk, Senior
District Judge. (7:04-cr-00078-jct-mfu-1; 7:07-cv-80018-jct-mfu)
Submitted: December 11, 2008 Decided: December 18, 2008
Before NIEMEYER, DUNCAN, and AGEE, Circuit Judges.
Dismissed by unpublished per curiam opinion.
Phillip Aubrey Irving, Appellant Pro Se. Julia C. Dudley, Acting
United States Attorney, Roanoke, Virginia, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Phillip Aubrey Irving seeks to appeal the district
court’s order dismissing as untimely his 28 U.S.C. § 2255 (2000)
motion. 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 any assessment of the
constitutional claims by the district court is debatable or
wrong and that any 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 Irving has
not made the requisite showing. Accordingly, we deny Irving’s
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
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