United States v. Johnson

60 F. App'x 950

Opinion

UNPUBLISHED

UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT

No. 03-6040

UNITED STATES OF AMERICA,

Plaintiff - Appellee,

versus

WAYNE JOHNSON,

Defendant - Appellant.

Appeal from the United States District Court for the Eastern District of Virginia, at Richmond. Richard L. Williams, Senior District Judge. (CR-99-119, CA-00-814)

Submitted: April 17, 2003 Decided: April 22, 2003

Before WIDENER, WILLIAMS, and MOTZ, Circuit Judges.

Dismissed by unpublished per curiam opinion.

Wayne Johnson, Appellant Pro Se. John Staige Davis, V, OFFICE OF THE UNITED STATES ATTORNEY, Richmond, Virginia, for Appellee.

Unpublished opinions are not binding precedent in this circuit.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

Wayne Johnson seeks to appeal the district court’s order

accepting the magistrate judge’s recommendation and dismissing his

28 U.S.C. § 2255 (2000) motion. An appeal may not be taken to this

court from the final order denying a motion under § 2255 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 on the merits

absent “a substantial showing of the denial of a constitutional

right.” 28 U.S.C. § 2253(c)(2) (2000); see Miller-El v. Cockrell,

123 S. Ct. 1029, 1040 (2003). As to claims dismissed by a district

court solely on procedural grounds, a certificate of appealability

will not issue unless the movant 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, 534 U.S. 941 (2001). We have

independently reviewed the record and conclude that Johnson has not

satisfied either standard. Accordingly, we deny a certificate of

appealability and dismiss the appeal. We deny Johnson’s motion to

expedite the appeal as moot. 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