United States v. Garcia

126 F. App'x 150

Opinion

UNPUBLISHED

UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT

No. 05-6172

UNITED STATES OF AMERICA,

Plaintiff - Appellee,

versus

JOSE ANTONIO GARCIA,

Defendant - Appellant.

Appeal from the United States District Court for the District of South Carolina, at Charleston. Patrick Michael Duffy, District Judge. (CR-98-1136; CA-04-2558)

Submitted: April 14, 2005 Decided: April 21, 2005

Before WILKINSON, NIEMEYER, and MICHAEL, Circuit Judges.

Dismissed by unpublished per curiam opinion.

Jose Antonio Garcia, Appellant Pro Se. Miller Williams Shealy, Jr., OFFICE OF THE UNITED STATES ATTORNEY, Charleston, South Carolina, for Appellee.

Unpublished opinions are not binding precedent in this circuit.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

Jose Antonia Garcia seeks to appeal the district court’s

order dismissing as untimely his petition filed under 28 U.S.C.

§ 2255 (2000). An appeal may not be taken from the final order in

a habeas corpus 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 for claims addressed by

a district court 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, 336

(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 Garcia has not made the requisite showing to obtain a

certificate of appealability. We, therefore, 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 the court and argument would not

aid the decisional process.

DISMISSED

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