United States v. DeMoss

62 F. App'x 463

Opinion

UNPUBLISHED

UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT

No. 02-7379

UNITED STATES OF AMERICA,

Plaintiff - Appellee,

versus

DAVID DANIEL DEMOSS,

Defendant - Appellant.

Appeal from the United States District Court for the Southern District of West Virginia, at Charleston. Joseph Robert Goodwin, District Judge. (CR-99-187, CA-02-294-2)

Submitted: November 21, 2002 Decided: March 21, 2003

Before NIEMEYER, WILLIAMS, and TRAXLER, Circuit Judges.

Dismissed by unpublished per curiam opinion.

David Daniel DeMoss, Appellant Pro Se. Kasey Warner, United States Attorney, Michael Lee Keller, Michael O. Callaghan, OFFICE OF THE UNITED STATES ATTORNEY, Charleston, West Virginia, for Appellee.

Unpublished opinions are not binding precedent in this circuit.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

David Daniel DeMoss appeals the district court’s order

accepting the magistrate judge’s report and recommendation and

dismissing his motion filed under 28 U.S.C. § 2255 (2000) as

untimely under the Antiterrorism and Effective Death Penalty Act

(AEDPA). 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). 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 DeMoss has not made the requisite showing. See DeMoss

v. United States, Nos. CR-99-187; CA-02-294-2 (S.D.W. Va. July 19,

2002). 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

2 materials before the court and argument would not aid the

decisional process.

DISMISSED