United States v. Austin , 54 F. App'x 585 ( 2003 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 02-7363
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
DAVID IVORY AUSTIN,
Defendant - Appellant.
Appeal from the United States District Court for the District of
South Carolina, at Greenville. Margaret B. Seymour, District Judge.
(CR-98-469, CA-02-411-24-6)
Submitted: January 16, 2003 Decided: January 23, 2003
Before WILLIAMS, KING, and GREGORY, Circuit Judges.
Dismissed by unpublished per curiam opinion.
David Ivory Austin, Appellant Pro Se. Alan Lance Crick, Assistant
United States Attorney, Greenville, South Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
See Local Rule 36(c).
PER CURIAM:
David Ivory Austin, a federal prisoner, seeks to appeal the
district court’s order denying relief on his motion filed under 28
U.S.C. § 2255 (2000). 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 petition
solely on procedural grounds, a certificate of appealability will
not issue unless the movant 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 Austin has not made the requisite showing. See United
States v. Austin, Nos. CR-98-469, CA-02-411-24-6 (D.S.C. filed July
31, 2002 & entered Aug. 1, 2002). Accordingly, we deny a
certificate of appealability and dismiss the appeal. We also deny
Austin’s motion for appointment of counsel.
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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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