United States v. Berry , 301 F. App'x 205 ( 2008 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 08-7550
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
C. WAYNE BERRY,
Defendant - Appellant.
Appeal from the United States District Court for the Eastern
District of Virginia, at Norfolk. Raymond A. Jackson, District
Judge. (2:08-cv-00201-RAJ; 2:05-cr-00155-RAJ-FBS-1)
Submitted: November 20, 2008 Decided: December 1, 2008
Before MOTZ and GREGORY, Circuit Judges, and HAMILTON, Senior
Circuit Judge.
Dismissed by unpublished per curiam opinion.
C. Wayne Berry, Appellant Pro Se. Robert John Krask, Assistant
United States Attorney, Norfolk, Virginia, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
C. Wayne Berry seeks to appeal the district court’s
order dismissing as untimely his 28 U.S.C. § 2255 (2000) motion.
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 any assessment of the constitutional claims by the district
court is debatable or wrong and that any dispositive procedural
ruling by the district court is likewise debatable. Miller-
El v. Cockrell, 537 U.S. 322, 336-38 (2003); Slack v. McDaniel,
529 U.S. 473, 484 (2000); Rose v. Lee, 252 F.3d 676, 683-84 (4th
Cir. 2001). We have independently reviewed the record and
conclude that Berry 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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