United States v. Henderson

Opinion

UNPUBLISHED

UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT

No. 04-6960

UNITED STATES OF AMERICA,

Plaintiff - Appellee,

versus

MARK EARL HENDERSON,

Defendant - Appellant.

Appeal from the United States District Court for the Southern District of West Virginia, at Charleston. Joseph Robert Goodwin, District Judge. (CR-99-214; CA-03-480-2)

Submitted: August 13, 2004 Decided: September 9, 2004

Before WIDENER, LUTTIG, and MICHAEL, Circuit Judges.

Dismissed by unpublished per curiam opinion.

John David Wooton, WOOTON, WOOTON & FRAGILE, Beckley, West Virginia, Marcia Gail Shein, LAW OFFICE OF MARCIA G. SHEIN, P.C., Decatur, Georgia, for Appellant. Michael Lee Keller, 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Unpublished opinions are not binding precedent in this circuit.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:

Mark Earl Henderson seeks to appeal the district court’s

order adopting the magistrate judge’s report and recommendation and

dismissing his 28 U.S.C. § 2255 (2000) motion. Henderson cannot

appeal this order unless a circuit judge or justice issues a

certificate of appealability, and 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 habeas

appellant meets 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,

326 (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 Henderson has not made the

requisite showing. 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 materials before

the court and argument would not aid the decisional process.

DISMISSED

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