US v. Roger D. Burre

Filing

UNPUBLISHED PER CURIAM OPINION filed. Originating case number: 2:03-cr-00024-1,2:10-cv-00034 Copies to all parties and the district court/agency. [998458723] [10-6927]

US v. Roger D. Burre

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Case: 10-6927 Document: 11

Date Filed: 11/03/2010

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UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 10-6927 UNITED STATES OF AMERICA, Plaintiff - Appellee, v. ROGER D. BURRESS, Defendant - Appellant.

Appeal from the United States District Court for the Southern District of West Virginia, at Charleston. John T. Copenhaver, Jr., District Judge. (2:03-cr-00024-1; 2:10-cv-00034) Submitted: September 30, 2010 Decided: November 3, 2010

Before MOTZ, DUNCAN, and KEENAN, Circuit Judges. Dismissed by unpublished per curiam opinion. Michael Joseph Curtis, Ashland, Kentucky; Sebastian M. Joy, CAUMMISAR LAW OFFICE, Grayson, Kentucky, for Appellant. Joshua Clarke Hanks, Assistant United States Attorney, Charleston, West Virginia, for Appellee. Unpublished opinions are not binding precedent in this circuit.

Dockets.Justia.com

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PER CURIAM: Roger D. Burress seeks to appeal the district court's order accepting the recommendation of the magistrate judge and dismissing as untimely his 28 U.S.C.A. § 2255 (West Supp. 2010) motion. judge The order is not appealable unless a circuit justice or issues a certificate of appealability. 28 U.S.C.

§ 2253(c)(1) (2006). issue absent "a

A certificate of appealability will not showing of the denial of a

substantial

constitutional right."

28 U.S.C. § 2253(c)(2) (2006).

When the

district court denies relief on the merits, a prisoner satisfies this standard by demonstrating that reasonable jurists would

find that the district court's assessment of the constitutional claims is debatable or wrong. 484 (2000); see Miller-El v. Slack v. McDaniel, 529 U.S. 473, Cockrell, 537 U.S. 322, 336-38

(2003).

When the district court denies relief on procedural

grounds, the prisoner must demonstrate both that the dispositive procedural ruling is debatable, and that the motion states a debatable claim of the denial of a constitutional right. 529 U.S. at 484-85. Slack,

We have independently reviewed the record

and conclude that Burress 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

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Case: 10-6927 Document: 11

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before

the

court

and

argument

would

not

aid

the

decisional

process. DISMISSED

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