United States v. Brinn

332 F. App'x 49

• Court: Court of Appeals for the Fourth Circuit
• Decided: June 9, 2009
• Docket: No. 08-7622
• Status: Published

Opinion

Dismissed by unpublished PER CURIAM opinion.

Unpublished opinions are not binding precedent in this circuit.

PER CURIAM:

Rufus Timothy Brinn, III, seeks to appeal the district court’s order dismissing his 28 U.S.C.A. § 2255 (West Supp.2008) motion as untimely. The order is not ap-pealable unless a circuit justice or judge issues a certifícate of appealability. 28 U.S.C. § 2258(c)(1) (2006). 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) (2006). 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 disposi-tive procedural ruling by the district court is likewise debatable. Miller-El v. Cock-rell, 587 U.S. 322, 336-38, 123 S.Ct. 1029, 154 L.Ed.2d 931 (2003); Slack v. McDaniel, 529 U.S. 473, 484, 120 S.Ct. 1595, 146 L.Ed.2d 542 (2000); Rose v. Lee, 252 F.3d 676, 683-84 (4th Cir.2001). We have independently reviewed the record and conclude that, although the district court’s dispositive procedural ruling that Brinn’s § 2255 motion was untimely is debatable, see Clay v. United States, 537 U.S. 522, 532, 123 S.Ct. 1072, 155 L.Ed.2d 88 (2003), Brinn has not made the requisite showing with respect to the merits of his constitutional claims. 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.