United States v. Staine ( 2010 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 09-7771
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
LIONEL STAINE,
Defendant - Appellant.
Appeal from the United States District Court for the Eastern
District of North Carolina, at Raleigh. Malcolm J. Howard,
Senior District Judge. (4:02-cr-00060-H-1; 4:08-cv-00085-H)
Submitted: January 13, 2010 Decided: January 27, 2010
Before NIEMEYER, KING, and SHEDD, Circuit Judges.
Dismissed by unpublished per curiam opinion.
Lionel Staine, Appellant Pro Se. Kimberly Ann Moore, OFFICE OF
THE UNITED STATES ATTORNEY, Raleigh, North Carolina, for
Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Lionel Staine seeks to appeal the district court’s
order denying relief on his 28 U.S.C.A. § 2255 (West Supp. 2009)
motion. The court denied Staine’s motion on the merits and
because it was untimely. The order is not appealable unless a
circuit justice or judge issues a certificate of appealability.
28 U.S.C. § 2253(c)(1) (2006). 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) (2006). A
prisoner satisfies this standard by demonstrating that
reasonable jurists would find that any assessment of the
constitutional claims by the district court is debatable or
wrong and that any dispositive procedural ruling by the district
court is likewise debatable. Miller-El v. Cockrell, 537 U.S.
322, 336-38 (2003); Slack v. McDaniel, 529 U.S. 473, 484 (2000);
Rose v. Lee, 252 F.3d 676, 683-84 (4th Cir. 2001). We have
independently reviewed the record and conclude Staine has not
made the requisite showing. Accordingly, we deny a certificate
of appealability and dismiss the appeal. We also deny Staine’s
motion for appointment of counsel. 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
2