United States v. Howard ( 2003 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 03-6671
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
JOHN EDWARD HOWARD,
Defendant - Appellant.
Appeal from the United States District Court for the Western
District of Virginia, at Roanoke. James C. Turk, Senior District
Judge. (CR-98-37-6, CA-03-64-7)
Submitted: July 9, 2003 Decided: July 16, 2003
Before WILKINSON, NIEMEYER, and MICHAEL, Circuit Judges.
Dismissed by unpublished per curiam opinion.
John Edward Howard, Appellant Pro Se. Ray B. Fitzgerald, Jr.,
OFFICE OF THE UNITED STATES ATTORNEY, Charlottesville, Virginia,
for Appellee.
Unpublished opinions are not binding precedent in this circuit.
See Local Rule 36(c).
PER CURIAM:
John Edward Howard seeks to appeal the district court’s order
dismissing as untimely his 28 U.S.C. § 2255 (2000) motion. An
appeal may not be taken from the final order in a habeas corpus
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
petitioner can 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.)
(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 Howard has not made the requisite showing.
See Miller-El v. Cockrell, 537 U.S. 322 (2003). 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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