United States v. Barber , 88 F. App'x 568 ( 2004 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 03-6442
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
ANTHONY D. BARBER,
Defendant - Appellant.
Appeal from the United States District Court for the Eastern
District of North Carolina, at Fayetteville. Malcolm J. Howard,
District Judge. (CR-94-36-H)
Submitted: November 26, 2003 Decided: February 18, 2004
Before TRAXLER, KING, and GREGORY, Circuit Judges.
Dismissed by unpublished per curiam opinion.
Anthony D. Barber, Appellant Pro Se. Rudolf A. Renfer, Jr.,
Assistant United States Attorney, Raleigh, North Carolina, for
Appellee.
Unpublished opinions are not binding precedent in this circuit.
See Local Rule 36(c).
PER CURIAM:
Anthony D. Barber seeks to appeal the district court’s
order dismissing as untimely his “Motion for Review of a Sentence
Under 18 U.S.C. § 3742 and Notice of Appeal,” which the district
court construed as a motion to vacate under 28 U.S.C. § 2255(2000). The order is not appealable 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
absent “a substantial showing of the denial of a constitutional
right.” 28 U.S.C. § 2253(c)(2) (2000). A prisoner satisfies this
standard by demonstrating that reasonable jurists would find that
his constitutional claims are debatable and that any dispositive
procedural rulings by the district court are also debatable or
wrong. See Miller-El v. Cockrell, 537 U.S. 322, 336 (2003);
Slack v. McDaniel, 529 U.S. 473, 484 (2000); Rose v. Lee, 252 F.3d
676, 683 (4th Cir. 2001). We have independently reviewed the
record and conclude that Barber 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 before the
court and argument would not aid the decisional process.
DISMISSED
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