United States v. White , 257 F. App'x 608 ( 2007 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 07-6513
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
ANTHONY CHATANE WHITE,
Defendant - Appellant.
No. 07-7095
ANTHONY CHATANE WHITE,
Plaintiff - Appellant,
versus
UNITED STATES OF AMERICA,
Defendant - Appellee.
Appeals from the United States District Court for the District of
South Carolina, at Anderson. Henry M. Herlong, Jr., District
Judge. (8:04-cr-00632-HMH; 8:07-cv-70064-HMH)
Submitted: September 26, 2007 Decided: December 10, 2007
Before MOTZ, KING, and GREGORY, Circuit Judges.
No. 07-6513 affirmed; No. 07-7095 dismissed by unpublished per
curiam opinion.
Anthony Chatane White, Appellant Pro Se. Elizabeth Jean Howard,
OFFICE OF THE UNITED STATES ATTORNEY, Greenville, South Carolina,
for Appellee.
Unpublished opinions are not binding precedent in this circuit.
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PER CURIAM:
In these consolidated appeals, Anthony Chatane White
seeks to appeal (1) the district court’s order denying his motion
to extend the time to file a motion under 28 U.S.C. § 2255 (2000),
based upon equitable tolling (No. 07-6513), and (2) the court’s
order denying his § 2255 motion, in which he challenged the amended
criminal judgment (No. 07-7095). With regard to the appeal in No.
07-6513, we find that, because White did not actually file a § 2255
motion challenging the original judgment of conviction, he is not
required to obtain a certificate of appealability to appeal the
district court’s order denying the motion for an extension of time.
See Woodford v. Garceau, 538 U.S. 202, 210 (2003) (holding that “a
case does not become ‘pending’ until an actual application for
habeas corpus relief is filed in federal court”). Thus, we deny
his motion for a certificate of appealability as unnecessary.
Turning to the propriety of the district court’s denial
of White’s motion for an extension of time, the district court
denied the motion on the ground that lack of access to White’s
legal documents did not warrant equitable tolling. We conclude,
however, that the district court lacked jurisdiction to consider
the motion in the first place because White had not filed a § 2255
motion challenging the original judgment of conviction and his
motion did not raise any potential grounds for relief. See United
States v. Leon, 203 F.3d 162, 163-64 (2d Cir. 2000). Accordingly,
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in No. 07-6513, we affirm the district court’s denial of relief on
the alternate ground that the court lacked jurisdiction. See
United States v. Smith, 395 F.3d 516, 518-19 (4th Cir. 2005) (“We
are not limited to evaluation of the grounds offered by the
district court to support its decision, but may affirm on any
grounds apparent from the record.”).
In appeal No. 07-7095, White may not appeal the district
court’s order 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 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 that White has not
made the requisite showing. Accordingly, we deny a certificate of
appealability and dismiss the appeal in No. 07-7095.
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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.
No. 07-6513 AFFIRMED
No. 07-7095 DISMISSED
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