United States v. DeBardeleben

103 F. App'x 522

Opinion

UNPUBLISHED

UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT

No. 03-7889

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 Greenbelt. Deborah K. Chasanow, District Judge. (CR-84-43-B; CA-03-2579-DKC)

Submitted: July 9, 2004 Decided: July 28, 2004

Before WILLIAMS, KING, and GREGORY, 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Dismissed by unpublished per curiam opinion.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Unpublished opinions are not binding precedent in this circuit.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 dismissing as successive 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 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,

338 (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 DeBardeleben has not made the

requisite showing. Accordingly, we deny a certificate of

appealability and dismiss the appeal. No active judge of this

court has voted to grant hearing en banc and we therefore deny

DeBardeleben’s petition for initial hearing en banc.

* By order filed April 6, 2004, this appeal was placed in abeyance for Jones v. Braxton, No. 03-6891. In view of our recent decision in Reid v. Angelone, 369 F.3d 363 (4th Cir. 2004), we no longer find it necessary to hold this case in abeyance for Jones.

- 2 - 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

- 3 -