United States v. Webb

126 F. App'x 142

Opinion

UNPUBLISHED

UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT

No. 04-7561

UNITED STATES OF AMERICA,

Plaintiff - Appellee,

versus

GARY RAY WEBB,

Defendant - Appellant.

Appeal from the United States District Court for the Eastern District of North Carolina, at Raleigh. James C. Fox, Senior District Judge. (CR-94-122-F; CA-01-489-5-F)

Submitted: April 1, 2005 Decided: April 21, 2005

Before NIEMEYER, GREGORY, and SHEDD, Circuit Judges.

Dismissed by unpublished per curiam opinion.

Milton Gordon Widenhouse, Jr., RUDOLF, WIDENHOUSE & FIALKO, Chapel Hill, North Carolina, for Appellant. Jane J. Jackson, Assistant United States Attorney, Raleigh, North Carolina, for Appellee.

Unpublished opinions are not binding precedent in this circuit.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

Gary Ray Webb seeks to appeal the district court’s order

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

(2000). The order is not appealable 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). 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 Webb 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

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