United States v. Shanton , 53 F. App'x 697 ( 2003 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 02-7211
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
DAVID WILBERT SHANTON, SR.,
Defendant - Appellant.
Appeal from the United States District Court for the Northern
District of West Virginia, at Martinsburg. W. Craig Broadwater,
District Judge. (CR-89-250, CA-01-81)
Submitted: December 11, 2002 Decided: January 3, 2003
Before NIEMEYER, WILLIAMS, and TRAXLER, Circuit Judges.
Dismissed by unpublished per curiam opinion.
David Wilbert Shanton, Sr., Appellant Pro Se. Thomas Oliver
Mucklow, Assistant United States Attorney, Martinsburg, West
Virginia; Sherry L. Muncy, OFFICE OF THE UNITED STATES ATTORNEY,
Clarksburg, West Virginia, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
See Local Rule 36(c).
PER CURIAM:
David Wilbert Shanton, Sr., seeks to appeal the district
court’s order accepting the recommendation of the magistrate judge
and denying relief on his motion filed under 28 U.S.C. § 2255(2000).* An appeal may not be taken to this court 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). A certificate of appealability will not issue for claims
dismissed by a district court solely on procedural grounds 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, 122 S. Ct. 318 (2001). We have reviewed the record and
*
Shanton filed his notice of appeal more than sixty days
after the district court entered its order on the docket, see Fed.
R. App. P. 4(a)(1), and failed to obtain an extension or reopening
of the appeal period, see Fed. R. App. P. 4(a)(5), (6). We have
jurisdiction to consider this appeal, however, because the district
court’s order was not entered on a separate judgment as required by
Fed. R. Civ. P. 58. See Hughes v. Halifax County Sch. Bd., 823
F.2d 832, 835 (4th Cir. 1987) (finding that five-page order did not
satisfy separate judgment where order contained procedural history
of case and district court’s reasoning). Thus, the appeal period
never began to run, and Shanton’s appeal may not be dismissed as
untimely. See Quinn v. Haynes, 234 F.3d 837, 843 (4th Cir. 2000),
cert. denied, 532 U.S. 1024 (2001).
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conclude for the reasons stated by the district court that Shanton
has not made the requisite showing. See Slack, 529 U.S. at 484.
Accordingly, we deny a certificate of appealability and dismiss the
appeal. See 28 U.S.C. § 2253(c)(1)(B); Slack, 529 U.S. at 484. 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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