Allen v. United States

69 F. App'x 164

• Court: Court of Appeals for the Fourth Circuit
• Decided: June 26, 2003
• Docket: 03-6086
• Status: Unpublished

Opinion

UNPUBLISHED

UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT

No. 03-6086

GARY M. ALLEN,

Plaintiff - Appellant,

versus

UNITED STATES OF AMERICA,

Defendant - Appellee.

Appeal from the United States District Court for the District of South Carolina, at Charleston. Sol Blatt, Jr., Senior District Judge. (CR-96-986, CA-00-4016-9-8)

Submitted: May 21, 2003 Decided: June 26, 2003

Before MICHAEL, TRAXLER, and KING, Circuit Judges.

Dismissed by unpublished per curiam opinion.

Gary M. Allen, Appellant Pro Se. Robert Hayden Bickerton, Assistant United States Attorney, Charleston, South Carolina, for Appellee.

Unpublished opinions are not binding precedent in this circuit. See Local Rule 36(c). PER CURIAM:

Gary Allen seeks to appeal the district court’s order denying

his 28 U.S.C. § 2255 (2000) motion. An appeal may not be taken

from the final order in a motion under § 2255 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

for claims addressed by a district court on the merits absent “a

substantial showing of the denial of a constitutional right.” 28

U.S.C. § 2253(c)(2) (2000). We have independently reviewed the

record and conclude Allen has not made the requisite showing.* See

Miller-El v. Cockrell, U.S. , 123 S. Ct. 1029 (2003).

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

* To the extent Allen seeks to raise issues not properly presented to the district court, we find they are waived. See Muth v. United States, 1 F.3d 246, 250 (4th Cir. 1993) (holding claims raised for first time on appeal will not be considered absent exceptional circumstances).