US v. Phillip Irving, No. 08-8124 (4th Cir. 2008)

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UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 08-8124 UNITED STATES OF AMERICA, Plaintiff - Appellee, v. PHILLIP AUBREY IRVING, Defendant - Appellant. Appeal from the United States District Court for the Western District of Virginia, at Roanoke. James C. Turk, Senior District Judge. (7:04-cr-00078-jct-mfu-1; 7:07-cv-80018-jct-mfu) Submitted: December 11, 2008 Decided: December 18, 2008 Before NIEMEYER, DUNCAN, and AGEE, Circuit Judges. Dismissed by unpublished per curiam opinion. Phillip Aubrey Irving, Appellant Pro Se. Julia C. Dudley, Acting United States Attorney, Roanoke, Virginia, for Appellee. Unpublished opinions are not binding precedent in this circuit. PER CURIAM: Phillip Aubrey Irving seeks to appeal the district court s order dismissing as untimely his 28 U.S.C. § 2255 (2000) motion. judge The order is not appealable unless a circuit justice or issues a certificate § 2253(c)(1) (2000). issue absent constitutional prisoner a substantial right. jurists constitutional appealability. 28 U.S.C. A certificate of appealability will not satisfies reasonable of 28 U.S.C. this would claims showing by the the denial § 2253(c)(2) standard find of that district by of (2000). demonstrating any assessment court is a A that of debatable the or wrong and that any dispositive procedural ruling by the district Miller-El v. Cockrell, 537 U.S. court is likewise debatable. 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 Irving has not made the requisite showing. motion for appeal. legal before a certificate of Accordingly, we deny Irving s appealability and dismiss the We dispense with oral argument because the facts and contentions the court are adequately and argument presented would not in aid the the materials decisional process. DISMISSED 2

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