United States v. Boynton , 100 F. App'x 196 ( 2004 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 03-6808
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
DAVID BOYNTON,
Defendant - Appellant.
Appeal from the United States District Court for the Eastern
District of Virginia, at Richmond. James R. Spencer, District
Judge. (CR-97-294; CA-03-307-3)
Submitted: June 2, 2004 Decided: June 14, 2004
Before WIDENER, WILKINSON, and DUNCAN, Circuit Judges.
Dismissed by unpublished per curiam opinion.
David Boynton, Appellant Pro Se. N. George Metcalf, Assistant
United States Attorney, Richmond, Virginia, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
See Local Rule 36(c).
PER CURIAM:
David Boynton seeks to appeal the district court’s order
dismissing as untimely his motion pursuant to 28 U.S.C. § 2255(2000). An appeal may not be taken from the final order in a
§ 2255 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 § 2255 motion solely on
procedural grounds, a certificate of appealability will not issue
unless the movant 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)). After considering our recent decision in United States v.
Sosa, 364 F.3d 507 (4th Cir. 2004), and independently reviewing the
record, we conclude that Boynton has not made the requisite
showing. See Miller-El v. Cockrell, 537 U.S. 322, 336 (2003).
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
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