United States v. Debardeleben ( 2003 )

PER CURIAM.

James M. DeBardeleben seeks to appeal the district court’s order denying relief on his motion to vacate, set aside, or correct sentence filed under 28 U.S.C. § 2255 (2000). An appeal may not be taken from the final order denying a motion under § 2255 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 motion solely on procedural grounds, a certificate of appealability will not issue unless the petitioner 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, 120 S.Ct. 1595, 146 L.Ed.2d 542 (2000)), cert. denied, 534 U.S. 941, 122 S.Ct. 318, 151 L.Ed.2d 237 (2001). We have reviewed the record and conclude for the reasons stated by the district court that DeBardeleben has not made the requisite showing. See United States v. DeBardeleben, Nos. CR-84-43-B; CA-02-2354-B (D.Md. July 26, 2002). Accordingly, we deny DeBardeleberis motion for a certificate of appealability and dismiss the appeal. See 28 U.S.C. § 2253(c) (2000). Although we grant DeBardeleben’s motion for an extension of time to file a petition for initial hearing en banc, grant his motion to file original of pleading, and grant his motion for leave to file a supplement to his petition for initial hearing en banc, no active judge of this court has voted to grant hearing en banc and we therefore deny DeBardeleben’s petition for en banc consideration. 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.