Wade v. Haines ( 2002 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 02-7154
GARY M. WADE,
Petitioner - Appellant,
versus
WILLIAM S. HAINES,
Respondent - Appellee.
Appeal from the United States District Court for the Northern
District of West Virginia, at Wheeling. Frederick P. Stamp, Jr.,
District Judge. (CA-01-102-5)
Submitted: October 24, 2002 Decided: November 22, 2002
Before WIDENER, NIEMEYER, and WILLIAMS, Circuit Judges.
Dismissed by unpublished per curiam opinion.
Gary M. Wade, Appellant Pro Se. Darrell V. McGraw, Jr., Dawn Ellen
Warfield, OFFICE OF THE ATTORNEY GENERAL OF WEST VIRGINIA,
Charleston, West Virginia, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
See Local Rule 36(c).
PER CURIAM:
Gary M. Wade seeks to appeal the district court’s order
adopting the magistrate judge’s report and dismissing as untimely
his petition filed under 28 U.S.C. § 2254 (2000). 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 § 2254 petition 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.
2001) (quoting Slack v. McDaniel, 529 U.S. 473, 484 (2000)). We
have reviewed the record and conclude for the reasons stated by the
district court that Wade has not made the requisite showing. See
Wade v. Haines, No. CA-01-102-5 (N.D.W. Va. July 1, 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 materials before the
court and argument would not aid the decisional process.
DISMISSED
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