United States v. McLamb

69 F. App'x 653

Opinion

UNPUBLISHED

UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT

No. 03-6826

UNITED STATES OF AMERICA,

Plaintiff - Appellee,

versus

HENRY MCLAMB, a/k/a Lee Wright Henry,

Defendant - Appellant.

Appeal from the United States District Court for the Eastern District of North Carolina, at Wilmington. James C. Fox, Senior District Judge. (CR-00-40-FO)

Submitted: July 24, 2003 Decided: July 31, 2003

Before MICHAEL and MOTZ, Circuit Judges, and HAMILTON, Senior Circuit Judge.

Dismissed by unpublished per curiam opinion.

Henry McLamb, Appellant Pro Se. Peter W. Kellen, Special Agent, 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Unpublished opinions are not binding precedent in this circuit.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:

Henry McLamb seeks to appeal the district court’s order

dismissing as untimely his motion filed under 28 U.S.C. § 2255

(2000). 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 his constitutional claims are debatable and

that any dispositive procedural rulings by the district court are

also debatable or wrong. See Miller-El v. Cockrell, 537 U.S. 322,

, 123 S. Ct. 1029, 1040 (2003); Slack v. McDaniel, 529 U.S. 473,

484 (2000); Rose v. Lee, 252 F.3d 676, 683 (4th Cir.), cert.

denied, 534 U.S. 941 (2001). We have independently reviewed the

record and conclude that McLamb 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