US v. Hammack, No. 05-7271 (4th Cir. 2006)

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UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 05-7271 UNITED STATES OF AMERICA, Plaintiff - Appellee, versus JOHNNY MCGUIRE HAMMACK, Defendant - Appellant. Appeal from the United States District Court for the Western District of Virginia, at Roanoke. Jackson L. Kiser, Senior District Judge. (CR-97-10; CA-05-196-7) Submitted: March 30, 2006 Decided: April 6, 2006 Before TRAXLER, GREGORY, and SHEDD, Circuit Judges. Dismissed by unpublished per curiam opinion. Johnny McGuire Hammack, Appellant Pro Se. Donald Ray Wolthuis, OFFICE OF THE UNITED STATES ATTORNEY, Roanoke, Virginia, for Appellee Unpublished opinions are not binding precedent in this circuit. See Local Rule 36(c). PER CURIAM: Johnny McGuire Hammack seeks to appeal the district court s order denying his 28 U.S.C. § 2255 (2000) motion as untimely. 28 U.S.C. § 2244(d)(1) (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. § 2253(c) (2000). 28 U.S.C. 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 the district court s assessment of his constitutional claims is debatable or wrong and that any dispositive procedural rulings by the district court are likewise debatable. See 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 Hammack has not made the requisite showing. certificate of appealability, dismiss Accordingly, we deny a the appeal, and Hammack s request to proceed on appeal in forma pauperis. deny 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 - 2 -

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