United States v. Hammack

174 F. App'x 770

Opinion

UNPUBLISHED

UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT

No. 05-7271

UNITED STATES OF AMERICA,

Plaintiff - Appellee,

versus

JOHNNY MCGUIRE HAMMACK,

Defendant - Appellant.

Appeal from the United States District Court for the Western District of Virginia, at Roanoke. Jackson L. Kiser, Senior District Judge. (CR-97-10; CA-05-196-7)

Submitted: March 30, 2006 Decided: April 6, 2006

Before TRAXLER, GREGORY, and SHEDD, Circuit Judges.

Dismissed by unpublished per curiam opinion.

Johnny McGuire Hammack, Appellant Pro Se. Donald Ray Wolthuis, OFFICE OF THE UNITED STATES ATTORNEY, Roanoke, Virginia, for Appellee

Unpublished opinions are not binding precedent in this circuit.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

Johnny McGuire Hammack seeks to appeal the district

court’s order denying his 28 U.S.C. § 2255 (2000) motion as

untimely. 28 U.S.C. § 2244(d)(1) (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) (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 the

district court’s assessment of his constitutional claims is

debatable or wrong and that any dispositive procedural rulings by

the district court are likewise debatable. See Miller-El v.

Cockrell, 537 U.S. 322, 336-38 (2003); Slack v. McDaniel, 529 U.S.

473, 484 (2000); Rose v. Lee, 252 F.3d 676, 683-84 (4th Cir. 2001).

We have independently reviewed the record and conclude that Hammack

has not made the requisite showing. Accordingly, we deny a

certificate of appealability, dismiss the appeal, and deny

Hammack’s request to proceed on appeal in forma pauperis. 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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