US v. Rufus Timothy Brinn, III

Filing 920090609

UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT

No. 08-7622

UNITED STATES OF AMERICA, Plaintiff - Appellee, v. RUFUS TIMOTHY BRINN, III, Defendant - Appellant.

Appeal from the United States District Court for the Eastern District of Virginia, at Alexandria. Gerald Bruce Lee, District Judge. (1:06-cr-00468-GBL-1; 1:08-cv-00276-GBL)

Submitted:

April 6, 2009

Decided:

June 9, 2009

Before WILKINSON, MOTZ, and KING, Circuit Judges.

Dismissed by unpublished per curiam opinion.

Rufus Timothy Brinn, III, Appellant Pro Se. Laura Elizabeth Zirkle, OFFICE OF THE UNITED STATES ATTORNEY, Alexandria, Virginia, for Appellee.

Unpublished opinions are not binding precedent in this circuit.

PER CURIAM: Rufus Timothy Brinn, III, seeks to appeal the district court's order dismissing his 28 U.S.C.A. § 2255 (West Supp.

2008) motion as untimely.

The order is not appealable unless a

circuit justice or judge issues a certificate of appealability. 28 U.S.C. § 2253(c)(1) (2006). A certificate of appealability

will not issue absent "a substantial showing of the denial of a constitutional prisoner reasonable right." this would by 28 U.S.C. standard find the that § 2253(c)(2) by any (2006). A that the or

satisfies jurists

demonstrating assessment is of

constitutional

claims

district

court

debatable

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, although the district court's dispositive procedural ruling that Brinn's § 2255 States, motion 537 was U.S. untimely 522, with 532 is debatable, Brinn to the see has Clay not v. United the his

(2003),

made of

requisite

showing

respect

merits

constitutional claims.

Accordingly, we deny a certificate of We dispense with oral

appealability and dismiss the appeal.

argument because the facts and legal contentions are adequately

2

presented in the materials before the court and argument would not aid the decisional process. DISMISSED

3