UNPUBLISHED

UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT

No. 98-7117

UNITED STATES OF AMERICA,

Plaintiff - Appellee,

versus

ANTHONY BUTTS,

Defendant - Appellant.

Appeal from the United States District Court for the Eastern Dis- trict of Virginia, at Norfolk. Robert G. Doumar, Senior District Judge. (CR-89-57-N, CA-97-1161-2)

Submitted: January 21, 1999 Decided: February 9, 1999

Before LUTTIG, MOTZ, and KING, Circuit Judges.

Dismissed by unpublished per curiam opinion.

Anthony Butts, Appellant Pro Se. Robert Joseph Seidel, Jr., Assis- tant United States Attorney, Norfolk, Virginia, for Appellee.

Unpublished opinions are not binding precedent in this circuit. See Local Rule 36(c). PER CURIAM:

Anthony Butts seeks to appeal the district court’s order deny-

ing his motion filed under

(West 1994 & Supp.

1998). We have reviewed the record and the district court’s opin-

ion and find no reversible error. Appellant’s unverified assertion

that he had filed the identical motion on April 3, 1997, is belied

by the record. Appellant’s § 2255 motion indicated that he had not

filed any previous motions for post-conviction relief. In addi-

tion, his claim that the untimely motion was a mere copy of the

filing he made in April 1997, is refuted by the motion itself which

is dated November 24, 1997. Accordingly, we grant leave to proceed

in forma pauperis but deny a certificate of appealability and dis-

miss the appeal on the reasoning of the district court. See United

States v. Butts, Nos. CR-89-57-N; CA-97-1161-2 (E.D. Va. May 27,

1998). 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