Falice v. United States , 82 F. App'x 823 ( 2003 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 03-6577
REGINALD ANTHONY FALICE,
Petitioner - Appellant,
versus
UNITED STATES OF AMERICA,
Respondent - Appellee.
Appeal from the United States District Court for the Western
District of North Carolina, at Charlotte. Richard L. Voorhees,
District Judge. (CR-98-244-3, CA-03-68-3-2-MU)
Submitted: October 22, 2003 Decided: December 12, 2003
Before WILLIAMS and KING, Circuit Judges, and HAMILTON, Senior
Circuit Judge.
Dismissed by unpublished per curiam opinion.
Reginald Anthony Falice, Appellant Pro Se.
Unpublished opinions are not binding precedent in this circuit.
See Local Rule 36(c).
PER CURIAM:
Reginald Anthony Falice seeks to appeal the district court’s
order dismissing his pleading construed as a 28 U.S.C. § 2255(2000) motion. Falice cannot appeal this order unless a circuit
judge or justice issues a certificate of appealability, and 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 habeas appellant meets this standard by
demonstrating that reasonable jurists would find that his
constitutional claims are debatable and that any dispositive
procedural rulings by the district court are also debatable or
wrong. See Miller-El v. Cockrell, 537 U.S. 322, , 123 S. Ct.
1029, 1039 (2003); Slack v. McDaniel, 529 U.S. 473, 484 (2000);
Rose v. Lee, 252 F.3d 676, 683 (4th Cir.), cert. denied, 534 U.S.
941 (2001). We have independently reviewed the record and conclude
Falice has not made the requisite showing. Accordingly, we deny a
certificate of appealability and dismiss the appeal.* We dispense
*
The district court relied on United States v. Torres, 211,
F.3d 836, 837 (4th Cir. 2000) to determine that Falice’s conviction
became final when this Court issued its mandate affirming his
conviction and sentence on direct appeal. Applying Torres, the
district court found that Falice’s petition was untimely because it
was filed more than one year after we issued a mandate affirming
his conviction on direct appeal. The United States Supreme Court
has since held that where, as here, a federal prisoner does not
challenge an appellate court’s affirmance of his conviction and
sentence by petitioning for certiorari in the United States Supreme
Court, his conviction does not become final until the time expires
for him to do so. Clay v. United States, 537 U.S. 522, , 123 S.
Ct. 1072 (2003). For this appeal, we have assumed Falice filed his
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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
pleading on the date he signed it, Houston v. Lack, 487 U.S. 266,
276 (1988), and applied Clay to determine that Falice’s pleading
was timely under the AEDPA, 28 U.S.C. § 2244(d)(1) (2000). However,
Falice’s pleading fails to establish he can make a substantial
showing of the denial of a constitutional right, and consequently,
Falice establishes no grounds that warrant the issuance of a
certificate of appealability.
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