United States v. Bailey

104 F. App'x 334

Opinion

ON REHEARING

UNPUBLISHED

UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT

No. 03-7657

UNITED STATES OF AMERICA,

Plaintiff - Appellee,

versus

ERNEST BAILEY,

Defendant - Appellant.

No. 04-6556

Appeals from the United States District Court for the District of Maryland, at Baltimore. Marvin J. Garbis, Senior District Judge. (CR-00-152-MJG; CA-02-4025-MJG)

Submitted: August 20, 2004 Decided: August 31, 2004 Before WIDENER and TRAXLER, Circuit Judges, and HAMILTON, Senior Circuit Judge.

No. 03-7657 affirmed; No. 04-6556 dismissed by unpublished per curiam opinion.

Ernest Bailey, Appellant Pro Se. A. David Copperthite, OFFICE OF THE UNITED STATES ATTORNEY, Baltimore, Maryland, for Appellee.

Unpublished opinions are not binding precedent in this circuit.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

- 2 - PER CURIAM:

In appeal No. 03-7657, Ernest Bailey appeals the district

court’s order denying relief on his motion to vacate or modify

sentence under 28 U.S.C. § 2255 (2000). The district court granted

a certificate of appealability as to Bailey’s claim of

prosecutorial misconduct in his § 2255 motion. In an opinion

issued on January 28, 2004, we dismissed Bailey’s appeal as

untimely. Bailey petitioned for panel and en banc rehearing,

asserting that the district court had granted him an extension of

time in which to file a notice of appeal pursuant to Fed. R. App.

P. 4(a)(5)(A), and his notice of appeal was therefore timely filed.

Upon consideration of his petition, we granted panel rehearing in

an order filed on May 26, 2004. On rehearing, we have reviewed the

record and find no reversible error. Accordingly, we affirm on the

reasoning of the district court. See United States v. Bailey, Nos.

CR-00-152-MJG; CA-02-4025-MJG (D. Md. filed July 31, 2003 & entered

Aug. 1, 2003).

In appeal No. 04-6556, Bailey seeks to appeal the

district court’s denial of his Fed. R. Civ. P. 60(b) motion seeking

reconsideration of the denial of his § 2255 motion. 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). A certificate of appealability will

not issue absent “a substantial showing of the denial of a

- 3 - constitutional right.” 28 U.S.C. § 2253(c)(2) (2000). A prisoner

satisfies this standard by demonstrating that reasonable jurists

would find that his constitutional claims are debatable and that

any dispositive procedural rulings by the district court are also

debatable or wrong. See Miller-El v. Cockrell, 537 U.S. 322, 338

(2003); Slack v. McDaniel, 529 U.S. 473, 484 (2000); Rose v. Lee,

252 F.3d 676, 683 (4th Cir. 2001). We have independently reviewed

the record and conclude that Bailey 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.

No. 03-7657 AFFIRMED; No. 04-6556 DISMISSED

- 4 -