United States v. DeMoss ( 2003 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 02-7379
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
DAVID DANIEL DEMOSS,
Defendant - Appellant.
Appeal from the United States District Court for the Southern
District of West Virginia, at Charleston. Joseph Robert Goodwin,
District Judge. (CR-99-187, CA-02-294-2)
Submitted: November 21, 2002 Decided: March 21, 2003
Before NIEMEYER, WILLIAMS, and TRAXLER, Circuit Judges.
Dismissed by unpublished per curiam opinion.
David Daniel DeMoss, Appellant Pro Se. Kasey Warner, United States
Attorney, Michael Lee Keller, Michael O. Callaghan, OFFICE OF THE
UNITED STATES ATTORNEY, Charleston, West Virginia, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
See Local Rule 36(c).
PER CURIAM:
David Daniel DeMoss appeals the district court’s order
accepting the magistrate judge’s report and recommendation and
dismissing his motion filed under 28 U.S.C. § 2255 (2000) as
untimely under the Antiterrorism and Effective Death Penalty Act
(AEDPA). 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 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, 122 S. Ct. 318 (2001). We have reviewed
the record and conclude for the reasons stated by the district
court that DeMoss has not made the requisite showing. See DeMoss
v. United States, Nos. CR-99-187; CA-02-294-2 (S.D.W. Va. July 19,
2002). 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
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materials before the court and argument would not aid the
decisional process.
DISMISSED
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