United States v. Lang

432 F. App'x 277

Opinion

UNPUBLISHED

UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT

No. 10-7765

UNITED STATES OF AMERICA,

Plaintiff - Appellee,

v.

JAMES WILLIAM LANG, a/k/a James W. Lang

Defendant - Appellant.

Appeal from the United States District Court for the Western District of Virginia, at Lynchburg. Norman K. Moon, Senior District Judge. (6:05-cr-00031-nkm-1; 6:10-cv-80291-nkm-mfu)

Submitted: May 26, 2011 Decided: May 31, 2011

Before KING, SHEDD, and DIAZ, Circuit Judges.

Dismissed by unpublished per curiam opinion.

James William Lang, Appellant Pro Se. Donald Ray Wolthuis, Assistant United States Attorney, Roanoke, Virginia, for Appellant.

Unpublished opinions are not binding precedent in this circuit. PER CURIAM:

James William Lang seeks to appeal the district

court’s order dismissing as untimely his 28 U.S.C.A. § 2255

(West Supp. 2010) motion. The order is not appealable unless a

circuit justice or judge issues a certificate of appealability.

28 U.S.C. § 2253(c)(1)(B) (2006). 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)

(2006). When the district court denies relief on the merits, a

prisoner satisfies this standard by demonstrating that

reasonable jurists would find that the district court’s

assessment of the constitutional claims is debatable or wrong.

Slack v. McDaniel, 529 U.S. 473, 484 (2000); see Miller-El v.

Cockrell, 537 U.S. 322, 336-38 (2003). When the district court

denies relief on procedural grounds, the prisoner must

demonstrate both that the dispositive procedural ruling is

debatable, and that the motion states a debatable claim of the

denial of a constitutional right. Slack, 529 U.S. at 484-85.

We have independently reviewed the record and conclude that Lang

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

certificate of appealability and dismiss the appeal.

2 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