United States v. Bailey ( 2003 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
UNITED STATES OF AMERICA, 
Plaintiff-Appellee,
v.  No. 03-6133
JAMES CLAUDE BAILEY,
Defendant-Appellant.

Appeal from the United States District Court
for the Eastern District of Virginia, at Newport News.
Raymond A. Jackson, District Judge.
(CR-00-21, CA-02-93)
Submitted: June 16, 2003
Decided: June 27, 2003
Before WIDENER and KING, Circuit Judges, and
HAMILTON, Senior Circuit Judge.
Dismissed by unpublished per curiam opinion.
COUNSEL
James Claude Bailey, Appellant Pro Se. Michael R. Smythers, Assis-
tant United States Attorney, Norfolk, Virginia, for Appellee.
Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).
2 UNITED STATES v. BAILEY
OPINION
PER CURIAM:
James Claude Bailey seeks to appeal the district court’s order deny-
ing 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)(B) (2000). When, as here, a district court dis-
misses a § 2255 motion 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, 534 U.S. 941 (2001).
As to Bailey’s ineffective assistance of counsel claims, the district
court denied those claims because they were not raised in Bailey’s
direct appeal. At the time it issued its decision, the district court did
not have the benefit of Massaro v. United States, __ U.S. __, 123 S.
Ct. 1690, 1696 (2003) (holding that failure to raise ineffective assis-
tance of counsel claims on direct appeal does not bar movant from
raising such claims in a § 2255 motion). While we conclude that
jurists of reason could debate the correctness of the district court’s
procedural ruling, we have independently reviewed the record and
conclude that Bailey has not demonstrated the denial of a constitu-
tional right as to his ineffective assistance of counsel claims. See
Miller-El v. Cockrell, __ U.S. __, 123 S. Ct. 1029 (2003).
The district court denied the remainder of Bailey’s claims because
he failed to raise them on direct appeal. We have independently
reviewed the record and conclude that Bailey has not made the requi-
site showing to obtain a certificate of appealability as to those claims.
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