United States v. Spoone

60 F. App'x 436

• Court: Court of Appeals for the Fourth Circuit
• Decided: March 25, 2003
• Docket: 02-7827
• Status: Unpublished

Opinion

UNPUBLISHED

UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT

No. 02-7827

UNITED STATES OF AMERICA,

Plaintiff - Appellee,

versus

BOBBY FORRESTER SPOONE, JR.,

Defendant - Appellant.

Appeal from the United States District Court for the District of South Carolina, at Greenville. G. Ross Anderson, Jr., District Judge. (CR-98-178, CA-02-3039-6-13)

Submitted: March 20, 2003 Decided: March 25, 2003

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

Dismissed by unpublished per curiam opinion.

Bobby Forrester Spoone, Jr., Appellant Pro Se. David Calhoun Stephens, Assistant United States Attorney, Greenville, South Carolina, for Appellee.

Unpublished opinions are not binding precedent in this circuit.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

Bobby Forrester Spoone, Jr., seeks to appeal the district

court’s order denying relief on 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).

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 Spoone has not made the requisite

showing. See Miller-El v. Cockrell, U.S. , 2003 WL 431659,

*10 (U.S. Feb. 25, 2003) (No. 01-7662). We deny a certificate of

appealability and dismiss the appeal. We also deny Spoone’s motion

to consolidate the matter with another of Spoone’s pending appeals,

No. 02-7480. 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