United States v. Calloway

101 F. App'x 944

Opinion

Rehearing granted, June 17, 2005

UNPUBLISHED

UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT

No. 03-6211

UNITED STATES OF AMERICA,

Plaintiff - Appellee,

versus

EDWARD CALLOWAY, a/k/a Stink,

Defendant - Appellant.

Appeal from the United States District Court for the Eastern District of Virginia, at Norfolk. Henry Coke Morgan, Jr., District Judge. (CR-92-113)

Submitted: June 18, 2004 Decided: July 8, 2004

Before WIDENER and NIEMEYER, Circuit Judges, and HAMILTON, Senior Circuit Judge.

Dismissed by unpublished per curiam opinion.

Edward Calloway, Appellant Pro Se. Laura Marie Everhart, Assistant United States Attorney, Norfolk, Virginia, for Appellee.

Unpublished opinions are not binding precedent in this circuit.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

Edward Calloway seeks to appeal the district court’s

orders denying relief on his motion under 28 U.S.C. § 2255 (2000),

and on his motion styled under Fed. R. Civ. P. 59(e), but filed

more than ten days after entry of the district court’s order

denying relief on the underlying 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 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, 336 (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 Calloway 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

* Calloway’s challenge to the district court’s denial of his § 2255 motion is not timely as to that order. See Fed. R. Civ. P. 4(a); Dove v. CODESCO, 569 F.2d 807, 809 (4th Cir. 1978). In addition, Calloway has waived appeal of the district court’s denial of his Fed. R. Civ. P. 59(e) motion because he failed to present argument on the issue in his informal brief. See 4th Cir. R. 34(b).

- 2 - contentions are adequately presented in the materials before the

court and argument would not aid the decisional process.

DISMISSED

- 3 -