United States v. McCray

174 F. App'x 153

Opinion

UNPUBLISHED

UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT

No. 06-6100

UNITED STATES OF AMERICA,

Plaintiff - Appellee,

versus

TIMOTHY LEOTIS MCCRAY,

Defendant - Appellee.

Appeal from the United States District Court for the Eastern District of North Carolina, at Raleigh. Malcolm J. Howard, Senior District Judge. (5:02-CR-00011-H; 5:05-CV-458-H)

Submitted: March 23, 2006 Decided: March 31, 2006

Before WILKINSON, LUTTIG, and WILLIAMS, Circuit Judges.

Dismissed by unpublished per curiam opinion.

Timothy Leotis McCray, Appellant Pro Se. Steve R. Matheny, OFFICE OF THE UNITED STATES ATTORNEY, Raleigh, North Carolina, for Appellee.

Unpublished opinions are not binding precedent in this circuit.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

Timothy Leotis McCray seeks to appeal the district

court’s order dismissing as untimely his 28 U.S.C. § 2255 (2000)

motion. An appeal may not be taken from the final order in a

§ 2255 proceeding 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 absent “a substantial

showing of the denial of a constitutional right.” 28 U.S.C.

§ 2253(c)(2) (2000). A prisoner satisfies this standard by

demonstrating that reasonable jurists would find that any

assessment of his constitutional claims by the district court is

debatable or wrong and that any dispositive procedural ruling by

the district court is likewise debatable. See Miller-El v.

Cockrell, 537 U.S. 322, 336 (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 that McCray

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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