United States v. Rush ( 2004 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 04-6002
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
TIMOTHY ALEXANDER RUSH,
Defendant - Appellant.
Appeal from the United States District Court for the Western
District of Virginia, at Charlottesville. Norman K. Moon, District
Judge. (CR-99-86; CA-01-903)
Submitted: May 24, 2004 Decided: June 4, 2004
Before WILKINSON, MOTZ, and DUNCAN, Circuit Judges.
Dismissed by unpublished per curiam opinion.
Timothy Alexander Rush, Appellant Pro Se. Morgan Eugene Scott,
Acting United States Attorney, Roanoke, Virginia; Bruce A. Pagel,
OFFICE OF THE UNITED STATES ATTORNEY, Charlottesville, Virginia,
for Appellee.
Unpublished opinions are not binding precedent in this circuit.
See Local Rule 36(c).
PER CURIAM:
Timothy Alexander Rush appeals 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). 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) (2000).
A prisoner satisfies this standard by demonstrating that reasonable
jurists would find that his constitutional claims are debatable and
that any dispositive procedural rulings by the district court are
also debatable or wrong. Miller-El v. Cockrell, 537 U.S. 322(2003); Slack v. McDaniel, 529 U.S. 473, 484 (2000); Rose v. Lee,
252 F.3d 676, 683 (4th Cir. 2001). We have independently reviewed
the record and conclude that Rush has not made the requisite
showing.
The district court found Rush’s trial counsel ineffective
for failing to note a timely appeal and, by order filed November
10, 2003, Rush’s judgment and commitment order were re-entered.
Rush timely appealed his conviction, raising five issues, including
a claim that his plea agreement was unconstitutional. This Court
affirmed Rush’s conviction and sentence. See United States v.
Rush, No. 04-4000 (4th Cir. May 19, 2004). Rush raised a claim
that his guilty plea was unconstitutional in his § 2255 motion. On
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appeal Rush asserts the same claim challenging the
constitutionality of his guilty plea that was presented in his
direct appeal. An issue previously decided on direct appeal may
not be raised on collateral review. See Boeckenhaupt v. United
States, 537 F.2d 1182, 1183 (4th Cir. 1976).
Rush also raises the following claims on appeal:
(1) trial counsel failed to provide him with certain discovery
materials; and (2) malicious prosecution. However, because he
raises these claims for the first time on appeal and fails to show
exceptional circumstances for his failure to raise them at an
earlier stage, we are foreclosed from considering them on appeal.
See Muth v. United States, 1 F.3d 246, 250 (4th Cir. 1993).
Accordingly, we deny a certificate of appealability and
dismiss Rush’s 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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