US v. Clark, No. 05-7828 (4th Cir. 2006)

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UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 05-7828 UNITED STATES OF AMERICA, Plaintiff - Appellee, versus BARRETT LEE CLARK, Defendant - Appellant. Appeal from the United States District Court for the Western District of North Carolina, at Bryson City. Lacy H. Thornburg, District Judge. (CR-02-57; CA-05-224-2) Submitted: April 27, 2006 Decided: May 4, 2006 Before NIEMEYER and MOTZ, Circuit Judges, and HAMILTON, Senior Circuit Judge. Dismissed by unpublished per curiam opinion. Barrett Lee Clark, Appellant Pro Se. Jill Westmoreland Rose, OFFICE OF THE UNITED STATES ATTORNEY, Asheville, North Carolina, for Appellee. Unpublished opinions are not binding precedent in this circuit. See Local Rule 36(c). PER CURIAM: Barrett Lee Clark, a federal prisoner, seeks to appeal the district court s order dismissing relief on his 28 U.S.C. § 2255 (2000) motion as untimely filed. An appeal may not be taken from the final order in a post-conviction proceeding unless a circuit justice or judge issues a certificate of appealability. 28 U.S.C. § 2253(c)(1) (2000). not issue absent a A certificate of appealability will substantial constitutional right. showing of the denial 28 U.S.C. § 2253(c)(2) (2000). of a A prisoner satisfies this standard by demonstrating that reasonable jurists would find that constitutional the claims district is court s debatable or assessment wrong and of his 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 Clark has not made the requisite showing. Accordingly, we deny a certificate of appealability and dismiss the appeal. facts and materials legal before We dispense with oral argument because the contentions are adequately the and argument court presented would not in the aid the decisional process. DISMISSED - 2 -

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