Wallace v. Dotson ( 2003 )

Rehearing granted by order
filed 3/17/03; opinion
filed 1/15/03 is vacated
UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 02-7353
FRED WALLACE, JR.,
Petitioner - Appellant,
versus
S. DOTSON, Warden,
Respondent - Appellee.
Appeal from the United States District Court for the Eastern
District of Virginia, at Alexandria. James C. Cacheris, Senior
District Judge. (CA-01-868-AM)
Submitted: December 16, 2002 Decided: January 15, 2003
Before WILLIAMS, MOTZ, and KING, Circuit Judges.
Dismissed by unpublished per curiam opinion.
Fred Wallace, Jr., Appellant Pro Se. Thomas Drummond Bagwell,
Assistant Attorney General, Richmond, Virginia, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
See Local Rule 36(c).
PER CURIAM:
Fred Wallace, Jr., a state prisoner, seeks to appeal the
district court’s order dismissing his habeas corpus petition, 28
U.S.C. § 2254 (2000), on procedural default grounds.
To be entitled to a certificate of appealability, Wallace must
make “a substantial showing of the denial of a constitutional
right.” 28 U.S.C. § 2253(c)(2) (2000). When a district court
dismisses solely on procedural grounds, the movant “must
demonstrate both (1) ‘that jurists of reason would find it
debatable whether the petition 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. 2001)
(quoting Slack v. McDaniel, 529 U.S. 473 (2000)), cert. denied, 122
S. Ct. 318 (2001). Upon examination of Wallace’s petition, we
cannot conclude that reasonable jurists would find it debatable
whether the district court correctly concluded that the petition
was untimely filed. 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 before the court and argument would not
aid the decisional process.
DISMISSED
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