US v. Hutchens

Filing 920070406

Opinion

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UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 07-6013 UNITED STATES OF AMERICA, Plaintiff - Appellee, versus RANDOLPH DENNIS HUTCHENS, II, Defendant - Appellant. Appeal from the United States District Court for the Northern District of West Virginia, at Martinsburg. W. Craig Broadwater, District Judge. (3:00-cr-00029-WCB; 3:05-cv-00113-WCB) Submitted: March 29, 2007 Decided: April 6, 2007 Before MOTZ, TRAXLER, and DUNCAN, Circuit Judges. Dismissed by unpublished per curiam opinion. Kevin David Mills, Martinsburg, West Virginia, for Appellant. Robert H. McWilliams, Jr., Assistant United States Attorney, Wheeling, West Virginia, for Appellee. Unpublished opinions are not binding precedent in this circuit. PER CURIAM: Randolph district court's Dennis order Hutchens, accepting II, the seeks to appeal of the the recommendation magistrate judge and dismissing as untimely his 28 U.S.C. 2255 (2000) motion. The order is not appealable unless a circuit 28 U.S.C. justice or judge issues a certificate of appealability. 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 any assessment of the constitutional claims by the district court is debatable or wrong and that any dispositive procedural ruling by the district court is likewise debatable. Miller-El v. Cockrell, 537 U.S. 322, 336-38 (2003); Slack v. McDaniel, 529 U.S. 473, 484 (2000); Rose v. Lee, 252 F.3d 676, 683-84 (4th Cir. 2001). We have independently reviewed the record and conclude that Hutchens 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 - 2 -

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