United States v. Charles Avery

Opinion

USCA4 Appeal: 22-7179 Doc: 18 Filed: 06/20/2023 Pg: 1 of 2

UNPUBLISHED

UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT

No. 22-7179

UNITED STATES OF AMERICA,

Plaintiff - Appellee,

v.

CHARLES LEE AVERY,

Defendant - Appellant.

Appeal from the United States District Court for the Eastern District of Virginia, at Richmond. Henry E. Hudson, Senior District Judge. (3:19-cr-00036-HEH-EWH-4; 3:22- cv-00182-HEH)

Submitted: June 15, 2023 Decided: June 20, 2023

Before DIAZ, RICHARDSON, and HEYTENS, Circuit Judges.

Dismissed by unpublished per curiam opinion.

Charles Lee Avery, Appellant Pro Se.

Unpublished opinions are not binding precedent in this circuit. USCA4 Appeal: 22-7179 Doc: 18 Filed: 06/20/2023 Pg: 2 of 2

PER CURIAM:

Charles Lee Avery seeks to appeal the district court’s order dismissing as untimely

his 28 U.S.C. § 2255 motion. See Whiteside v. United States, 775 F.3d 180, 182-83 (4th

Cir. 2014) (en banc) (explaining that § 2255 motions are subject to one-year statute of

limitations, running from latest of four commencement dates enumerated in 28 U.S.C.

§ 2255(f)). The order is not appealable unless a circuit justice or judge issues a certificate

of appealability. 28 U.S.C. § 2253(c)(1)(B). 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). When, as here, the district court denies relief on procedural grounds, the

prisoner must demonstrate both that the dispositive procedural ruling is debatable and that

the motion states a debatable claim of the denial of a constitutional right. Gonzalez v.

Thaler, 565 U.S. 134, 140-41 (2012) (citing Slack v. McDaniel, 529 U.S. 473, 484 (2000)).

We have independently reviewed the record and conclude that Avery 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 this court and argument would not aid the

decisional process.

DISMISSED