United States v. Whitehead ( 1999 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 99-6609
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
JEFFREY W. WHITEHEAD,
Defendant - Appellant.
Appeal from the United States District Court for the Southern
District of West Virginia, at Bluefield. David A. Faber, District
Judge. (CR-92-242, CA-97-428-1)
Submitted: July 8, 1999 Decided: July 15, 1999
Before NIEMEYER, WILLIAMS, and KING,* Circuit Judges.
Dismissed by unpublished per curiam opinion.
Jeffrey M. Whitehead, Appellant Pro Se. Michael Lee Keller, OFFICE
OF THE UNITED STATES ATTORNEY, Charleston, West Virginia, for
Appellee.
Unpublished opinions are not binding precedent in this circuit.
See Local Rule 36(c).
*
Judge King did not participate in consideration of this
case. The opinion is filed by a quorum of the panel pursuant to 28
U.S.C. § 46(d) (1994).
PER CURIAM:
Jeffrey Whitehead seeks to appeal from the district court's
orders denying his motion filed pursuant to 28 U.S.C.A. § 2255(West 1994 & Supp. 1999), and denying his application for a
certificate of appealability. Our review of the record discloses
that this appeal is without merit. The notice of appeal was filed
within sixty days of the denial of Whitehead's motion for a cer-
tificate of appealability, but outside of the appeal period for the
underlying denial. Because the notice of appeal was untimely as to
the dismissal on the merits, we do not have jurisdiction to con-
sider that order, and we dismiss the appeal as to that order. See
Browder v. Director, Dep't of Corrections, 434 U.S. 257, 268-69
(1978); Dove v. CODESCO, 569 F.2d 807, 809 (4th Cir. 1978).
We find that the district court's denial of Whitehead's
application for a certificate of appealability was proper because
he failed to demonstrate the denial of a substantial constitutional
right. See 28 U.S.C. § 2253(c)(3) (West 1994 & Supp. 1999). Ac-
cordingly, we deny a certificate of appealability and dismiss the
appeal on the reasoning of the district court. We dispense with
oral argument because the facts and legal contentions are adequate-
ly presented in the materials before the Court and argument would
not aid the decisional process.
DISMISSED
2