United States v. Austin

54 F. App'x 585

Opinion

PER CURIAM.

David Ivory Austin, a federal prisoner, seeks to appeal 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). When, as here, a district court dismisses a § 2255 petition solely on procedural grounds, a certificate of appealability mil not issue unless the movant 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 Austin has not made the requisite showing. See United States v. Austin, Nos. CR-98-469, CA-02-411-24-6 (D.S.C. filed July 31, 2002 & entered Aug. 1, 2002). Accordingly, we deny a certificate of appealability and dismiss the appeal. We also deny Austin’s motion for appointment of counsel.

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.