United States v. Madden

104 F. App'x 331

• Court: Court of Appeals for the Fourth Circuit
• Decided: August 13, 2004
• Docket: 04-6297
• Status: Unpublished

Opinion

PER CURIAM.

Toy Burtron Madden appeals the district court’s order recharacterizing his mandamus petition as a second and unauthorized 28 U.S.C. § 2255 (2000) habeas motion. * We have reviewed the record and find no reversible error in the district court’s procedural ruling. See United States v. Madden, No. CR-94-440-JFM; CA-04-90-JFM (D.Md. Jan. 21, 2004). Accordingly, Madden cannot appeal from 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 the district court’s dispositive procedural ruling is debatable or wrong. See Miller-El v. Cockrell, 537 U.S. 322, 326, 123 S.Ct. 1029, 154 L.Ed.2d 931 (2003); Slack v. McDaniel, 529 U.S. 473, 484, 120 S.Ct. 1595, 146 L.Ed.2d 542 (2000); Rose v. Lee, 252 F.3d 676, 683 (4th Cir.2001). We have independently reviewed the record and conclude Madden 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

* By order filed February 18, 2004, this appeal was placed in abeyance for Jones v. Braxton, No. 03-6891. In view of our recent decision in Reid v. Angelone, 369 F.3d 363 (4th Cir. 2004), we no longer find it necessary to hold this case in abeyance for Jones.