Stowe v. Harkleroad , 100 F. App'x 947 ( 2004 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 04-6699
JAMES POSTON STOWE,
Petitioner - Appellant,
versus
SIDNEY HARKLEROAD,
Respondent - Appellee.
Appeal from the United States District Court for the Western
District of North Carolina, at Asheville. Graham C. Mullen, Chief
District Judge. (CA-03-60-1-MU)
Submitted: June 10, 2004 Decided: June 21, 2004
Before WILLIAMS, and TRAXLER, Circuit Judges, and HAMILTON, Senior
Circuit Judge.
Dismissed by unpublished per curiam opinion.
James Poston Stowe, Appellant Pro Se.
Unpublished opinions are not binding precedent in this circuit.
See Local Rule 36(c).
PER CURIAM:
James Poston Stowe seeks to appeal the district court’s
order dismissing as untimely filed his petition under 28 U.S.C.
§ 2254 (2000). An appeal may not be taken from the final order in
a habeas corpus proceeding unless a circuit justice or judge issues
a certificate of appealability. 28 U.S.C. § 2253(c)(1) (2000).
When, as here, a district court dismisses a § 2254 petition 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 that Stowe has not made the requisite showing. See
Miller-El v. Cockrell, 537 U.S. 322, 336 (2003). Accordingly, we
deny Stowe’s motion for 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
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