United States v. Under Seal ( 2003 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 02-7395
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
UNDER SEAL,
Defendant - Appellant.
Appeal from the United States District Court for the Eastern
District of Virginia, at Richmond. Robert E. Payne, District Judge.
(CR-96-66)
Submitted: March 6, 2003 Decided: March 13, 2003
Before WILKINSON, MICHAEL, and KING, Circuit Judges.
Dismissed by unpublished per curiam opinion.
Under Seal, Appellant Pro Se. Stephen Wiley Miller, OFFICE OF THE
UNITED STATES ATTORNEY, Richmond, Virginia, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
See Local Rule 36(c).
PER CURIAM:
Appellant seeks to appeal the district court’s order
dismissing as untimely filed his motion under 28 U.S.C. § 2255(2000). An appeal may not be taken from the final order in a § 2255
proceeding unless a circuit justice or judge issues a certificate
of appealability. 28 U.S.C. § 2253(c)(1) (2000). When, as here,
a district court dismisses a § 2255 motion solely on procedural
grounds, a certificate of appealability will not issue unless the
movant can demonstrate both “(1) ‘that jurists of reason would find
it debatable whether the motion states a valid claim of the denial
of a constitutional right’ and (2) ‘that jurists of reason would
find it debatable whether the district court was correct in its
procedural ruling.’” Rose v. Lee, 252 F. 3d 676, 684 (4th Cir.)
(quoting Slack v. McDaniel, 529 U.S. 473, 484 (2000)), cert.
denied, 534 U.S. 941 (2001). We have independently reviewed the
record and conclude that Appellant has not made the requisite
showing. See Miller-El v. Cockrell, U.S. , 2003 WL 431659,
at *10 (U.S. Feb. 25, 2003) (No. 01-7662). Accordingly, we deny
Appellant’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
2