United States v. DeBardeleben

60 F. App'x 980

Opinion

UNPUBLISHED

UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT

No. 02-7442

UNITED STATES OF AMERICA,

Plaintiff - Appellee,

versus

JAMES M. DEBARDELEBEN,

Defendant - Appellant.

Appeal from the United States District Court for the District of Maryland, at Baltimore. Walter E. Black, Jr., Senior District Judge. (CR-84-43-B, CA-02-2354-B)

Submitted: January 16, 2003 Decided: March 25, 2003

Before WILLIAMS, KING, and GREGORY, Circuit Judges.

Dismissed by unpublished per curiam opinion.

James M. DeBardeleben, Appellant Pro Se. Juliet Ann Eurich, Tarra R. DeShields-Minnis, OFFICE OF THE UNITED STATES ATTORNEY, Baltimore, Maryland, for Appellee.

Unpublished opinions are not binding precedent in this circuit.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, as here, 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, 122 S. Ct. 318 (2001). We have reviewed the record and

conclude for the reasons stated by the district court that

DeBardeleben has not made the requisite showing. See United States

v. DeBardeleben, Nos. CR-84-43-B; CA-02-2354-B (D. Md. July 26,

2002). Accordingly, we deny DeBardeleben’s motion for a certificate

of appealability and dismiss the appeal. See 28 U.S.C. § 2253(c)

(2000). Although we grant DeBardeleben’s motion for an extension

of time to file a petition for initial hearing en banc, grant his

motion to file original of pleading, and grant his motion for leave

2 to file a supplement to his petition for initial hearing en banc,

no active judge of this court has voted to grant hearing en banc

and we therefore deny DeBardeleben’s petition for en banc

consideration. 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