United States v. Smiley , 60 F. App'x 993 ( 2003 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 03-6344
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
DONALD EUGENE SMILEY,
Defendant - Appellant.
Appeal from the United States District Court for the Eastern
District of Virginia, at Norfolk. Rebecca Beach Smith, District
Judge. (CR-01-213, CA-02-978-2)
Submitted: April 17, 2003 Decided: April 24, 2003
Before WIDENER, WILLIAMS, and MOTZ, Circuit Judges.
Dismissed by unpublished per curiam opinion.
Donald Eugene Smiley, Appellant Pro Se. James Ashford Metcalfe,
Assistant United States Attorney, Norfolk, Virginia, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
See Local Rule 36(c).
PER CURIAM:
Donald Eugene Smiley seeks to appeal the district court’s
order dismissing without prejudice his motion filed under 28 U.S.C.
§ 2255 (2000) because the direct appeal of his conviction was still
pending. 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.) (quoting Slack v. McDaniel, 529 U.S. 473, 484 (2000)),
cert. denied, 534 U.S. 941 (2001). We have independently reviewed
the record and conclude that Smiley has not made the requisite
showing. See Miller-El v. Cockrell, U.S. , 123 S.Ct. 1029(2003).
Accordingly, we deny a certificate of appealability and
dismiss the appeal. We deny Smiley’s motion to consolidate this
appeal with the appeal pending in his criminal case, No. 02-4464.
We dispense with oral argument because the facts and legal
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contentions are adequately presented in the materials before the
court and argument would not aid the decisional process.
DISMISSED
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