Zater v. United States

63 F. App'x 158

• Court: Court of Appeals for the Fourth Circuit
• Decided: May 20, 2003
• Docket: 02-7658
• Status: Unpublished

Opinion

UNPUBLISHED

UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT

No. 02-7658

BRIAN PETER ZATER,

Plaintiff - Appellant,

versus

UNITED STATES OF AMERICA,

Defendant - Appellee.

No. 03-6273

Petitioner - Appellant,

Respondent - Appellee.

Appeals from the United States District Court for the District of South Carolina, at Columbia. Dennis W. Shedd and Henry M. Herlong, Jr., District Judges. (CR-00-626, CA-02-958-3-19, CA-02-958-3-20)

Submitted: May 15, 2003 Decided: May 20, 2003 Before LUTTIG and KING, Circuit Judges, and HAMILTON, Senior Circuit Judge.

Dismissed by unpublished per curiam opinion.

Brian Peter Zater, Appellant Pro Se. Stacey Denise Haynes, OFFICE OF THE UNITED STATES ATTORNEY, Columbia, South Carolina, for Appellee.

Unpublished opinions are not binding precedent in this circuit.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

2 PER CURIAM:

In these consolidated appeals, Brian Peter Zater seeks to

appeal the district court’s orders denying relief on his motion

filed under 28 U.S.C. § 2255 (2000).

In No. 02-7658, Zater seeks to appeal the district court’s

order adopting the report and recommendation of the magistrate

judge and dismissing the portion of his § 2255 motion alleging

ineffective assistance of counsel based on counsel’s failure to

file a direct appeal. This court may exercise jurisdiction only

over final orders, 28 U.S.C. § 1291 (2000), and certain

interlocutory and collateral orders, 28 U.S.C. § 1292 (2000); Fed.

R. Civ. P. 54(b); Cohen v. Beneficial Indus. Loan Corp., 337 U.S.

541 (1949). The order Zater seeks to appeal is neither a final

order nor an appealable interlocutory or collateral order.

Accordingly, we deny leave to proceed in forma pauperis and dismiss

the appeal for lack of jurisdiction.

In No. 03-6273, Zater seeks to appeal the district court’s

order dismissing the remainder of Zater’s claims under § 2255. 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. See 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

3 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, 123 S. Ct.

1029, 1040 (2003); Slack v. McDaniel, 529 U.S. 473, 484 (2000);

Rose v. Lee, 252 F.3d 676, 683 (4th Cir.), cert. denied, 534 U.S.

941 (2001). We have independently reviewed the record and conclude

that Zater has not made the requisite showing. Accordingly, we

deny leave to proceed in forma pauperis, 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