United States v. Pratt

56 F. App'x 180

Opinion

UNPUBLISHED

UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT

No. 02-7939

UNITED STATES OF AMERICA,

Plaintiff - Appellee,

versus

JAMES EDWARD PRATT, a/k/a Phillip Pratt,

Defendant - Appellant.

Appeal from the United States District Court for the Middle District of North Carolina, at Durham. N. Carlton Tilley, Jr., Chief District Judge. (CR-00-27, CA-02-139-1)

Submitted: March 6, 2003 Decided: March 14, 2003

Before WILKINSON, MICHAEL, and KING, Circuit Judges.

Dismissed by unpublished per curiam opinion.

James Edward Pratt, Appellant Pro Se. Sandra Jane Hairston, Assistant United States Attorney, Greensboro, North Carolina, for Appellee.

Unpublished opinions are not binding precedent in this circuit.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

James Edward Pratt seeks to appeal the district court’s order

accepting the recommendation of the magistrate judge and denying

relief on his motion filed under 28 U.S.C. § 2255 (2000) on the

grounds it was untimely. 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). When, as here, a district court dismisses a § 2255 motion

solely on procedural grounds, a certificate of appealability will

not issue unless the movant 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 Pratt has not made the

requisite showing. See Miller-El v. Cockrell, U.S. , 2003

WL 431659, at *10 (U.S. Feb. 25, 2003) (No. 01-7662). 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