United States v. DeBardeleben

57 F. App'x 203

Opinion

UNPUBLISHED

UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT

No. 02-7906

UNITED STATES OF AMERICA,

Plaintiff - Appellee,

versus

JAMES M. DEBARDELEBEN,

Defendant - Appellant.

Appeal from the United States District Court for the Western District of North Carolina, at Charlotte. Richard L. Voorhees, District Judge. (CR-83-50, CA-02-379-3-1-V)

Submitted: March 6, 2003 Decided: March 14, 2003

Before WILKINSON, MICHAEL, and KING, Circuit Judges.

Dismissed by unpublished per curiam opinion.

James M. DeBardeleben, Appellant Pro Se.

Unpublished opinions are not binding precedent in this circuit.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

James M. DeBardeleben seeks to appeal the district court’s

order denying relief on his motion to vacate, set aside, or correct

sentence filed under 28 U.S.C. § 2255 (2000). An appeal may not be

taken from the final order denying a motion under § 2255 unless a

circuit justice or judge issues a certificate of appealability. 28

U.S.C. § 2253(c)(1) (2000). When a district court dismisses a

§ 2255 motion solely on procedural grounds, a certificate of

appealability will not issue unless the petitioner 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 (2000)), cert. denied, 534 U.S. 941

(2001). We have independently reviewed the record and conclude that

DeBardeleben has not made the requisite showing. See Miller-El v.

Cockrell, U.S. , 2003 WL 431659 (U.S. Feb. 25, 2003) (No.

01-7662). Accordingly, we deny DeBardeleben’s motion for 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