United States v. Livingston ( 2007 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 06-7941
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
DENNEVER LIVINGSTON,
Defendant - Appellant.
Appeal from the United States District Court for the Eastern
District of Virginia, at Norfolk. Henry Coke Morgan, Jr., Senior
District Judge. (2:97-cr-00039-HCM; 2:04-cv-432)
Submitted: April 26, 2007 Decided: May 1, 2007
Before WILLIAMS, MICHAEL, and SHEDD, Circuit Judges.
Dismissed by unpublished per curiam opinion.
Noell Peter Tin, TIN, FULTON, GREENE & OWEN, PLLC, Charlotte, North
Carolina, for Appellant. Howard Jacob Zlotnick, Assistant United
States Attorney, Newport News, Virginia, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Dennever Livingston seeks to appeal the district court’s
order dismissing as untimely his 28 U.S.C. § 2255 (2000) motion.
The order is not appealable 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 Livingston has
not made the requisite showing. 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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