United States v. Stephan

82 F. App'x 77

Opinion

UNPUBLISHED

UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT

No. 03-7200

UNITED STATES OF AMERICA,

Plaintiff - Appellee,

versus

GARRY STEPHAN, a/k/a Gorilla,

Defendant - Appellant.

Appeal from the United States District Court for the Eastern District of Virginia, at Norfolk. Henry Coke Morgan, Jr., District Judge. (CR-99-23, CA-02-358-2)

Submitted: November 19, 2003 Decided: December 4, 2003

Before WILKINSON and GREGORY, Circuit Judges, and HAMILTON, Senior Circuit Judge.

Dismissed by unpublished per curiam opinion.

Marvin David Miller, Alexandria, Virginia, for Appellant. Robert Joseph Seidel, Jr., Assistant United States Attorney, Fernando Groene, OFFICE OF THE UNITED STATES ATTORNEY, Norfolk, Virginia, for Appellee.

Unpublished opinions are not binding precedent in this circuit.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

Gary Stephan 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). 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,

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 Stephan has not made the

requisite showing. Accordingly, we deny Stephan’s motion for 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