United States v. McClain

60 F. App'x 467

Opinion

UNPUBLISHED

UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT

No. 03-6162

UNITED STATES OF AMERICA,

Plaintiff - Appellee,

versus

ERNEST ALLEN MCCLAIN,

Defendant - Appellant.

Appeal from the United States District Court for the Northern District of West Virginia, at Clarksburg. Irene M. Keeley, Chief District Judge. (CR-94-142, CA-01-71-1)

Submitted: March 20, 2003 Decided: March 31, 2003

Before WILLIAMS and TRAXLER, Circuit Judges, and HAMILTON, Senior Circuit Judge.

Dismissed by unpublished per curiam opinion.

Ernest Allen McClain, Appellant Pro Se.

Unpublished opinions are not binding precedent in this circuit.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

Ernest Allen McClain seeks to appeal the district court’s

order denying relief on his petition filed under 28 U.S.C. § 2255

(2000). An appeal may not be taken to this court from the final

order in a habeas corpus proceeding in which the detention

complained of arises out of process issued by a state court unless

a circuit justice or judge issues a certificate of appealability.

28 U.S.C. § 2253(c)(1) (2000). When, as here, a district court

dismisses a § 2241 petition solely on procedural grounds, a

certificate of appealability will not issue unless the petitioner

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 McClain has not made the requisite

showing. See Miller-El v. Cockrell, 123 S.Ct. 1029 (2003).

Accordingly, we deny McClain’s motion for a certificate of

appealability and dismiss the appeal. We dispense with oral

argument because the facts and legal contentions are adequately

2 presented in the materials before the court and argument would not

aid the decisional process.

DISMISSED