United States v. Smith

55 F. App'x 195

• Court: Court of Appeals for the Fourth Circuit
• Decided: February 3, 2003
• Docket: 02-7557
• Status: Unpublished

Opinion

PER CURIAM.

Harold Smith, Jr., a federal prisoner, seeks to appeal the district court’s order denying relief on his motion filed under 28 U.S.C. § 2255 (2000) as successive. An appeal may not be taken from the final order in a habeas corpus 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 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, 120 S.Ct. 1595, 146 L.Ed.2d 542 (2000)), cert. denied, 534 U.S. 941, 122 S.Ct. 318, 151 L.Ed.2d 237 (2001). We have reviewed the record and conclude for the reasons stated by the district court that Smith has not made the requisite showing. See United States v. Smith, Nos. CR-85-166; CA-02-2456-613AK (D.S.C. Sept. 13, 2002). According ly, 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.