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UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 02-7492 UNITED STATES OF AMERICA, Plaintiff - Appellee, versus FRANK J. MASIARCZYK, JR., Defendant - Appellant. Appeal from the United States District Court for the Northen District to West Virginia, at Clarksburg. Irene M. Keeley, Chief District Judge. (CR-97-39, CA-02-29-1) Submitted: March 21, 2003 Decided: April 1, 2003 Before WIDENER, NIEMEYER, and MICHAEL, Circuit Judges. Dismissed by unpublished per curiam opinion. Frank J. Masiarczyk, Jr., Appellant Pro Se. Sharon L. Potter, OFFICE OF THE UNITED STATES ATTORNEY, Wheeling, West Virginia, for Appellee. Unpublished opinions are not binding precedent in this circuit. See Local Rule 36(c). PER CURIAM: Frank J. Masiarczyk, Jr., seeks to appeal the district court’s order denying relief on his motion filed under
28 U.S.C. § 2255(2000). An appeal may not be taken to this court from the final order in a motion under § 2255 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 for claims addressed by a district court on the merits absent “a substantial showing of the denial of a constitutional right.”
28 U.S.C. § 2253(c)(2) (2000). As to claims dismissed by a district court solely on procedural grounds, a certificate of appealability will not issue unless the petitioner can demonstrate both “(1) ‘that jurists of reason would find it debatable whether the petition states a valid claim of the denial of a constitutional right’ and (2) ‘that jurists of reason would find it debatable whether the district court was correct in its procedural ruling.’” Rose v. Lee,
252 F. 3d 676, 684 (4th Cir. 2001) (quoting Slack v. McDaniel,
529 U.S. 473, 484 (2000)). We have independently reviewed the record and conclude Masiarczyk has not made the requisite showing. See Miller-El v. Cockrell, U.S. ,
123 S. Ct. 1029, 1039-40 (2003). Accordingly, we deny a certificate of appealability and dismiss the appeal. See
28 U.S.C. § 2253(c) (2000). We dispense with oral argument because the facts and legal contentions are 2 adequately presented in the materials before the court and argument would not aid the decisional process. DISMISSED 3
Document Info
Docket Number: 02-7492
Citation Numbers: 60 F. App'x 477
Judges: Michael, Niemeyer, Per Curiam, Widener
Filed Date: 4/1/2003
Precedential Status: Non-Precedential
Modified Date: 8/6/2023