Rehearing granted by order filed 3/17/03; opinion filed 1/15/03 is vacated UNPUBLISHED

UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT

No. 02-7353

FRED WALLACE, JR.,

Petitioner - Appellant,

versus

S. DOTSON, Warden,

Respondent - Appellee.

Appeal from the United States District Court for the Eastern District of Virginia, at Alexandria. James C. Cacheris, Senior District Judge. (CA-01-868-AM)

Submitted: December 16, 2002 Decided: January 15, 2003

Before WILLIAMS, MOTZ, and KING, Circuit Judges.

Dismissed by unpublished per curiam opinion.

Fred Wallace, Jr., Appellant Pro Se. Thomas Drummond Bagwell, Assistant Attorney General, Richmond, Virginia, for Appellee.

Unpublished opinions are not binding precedent in this circuit.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

Fred Wallace, Jr., a state prisoner, seeks to appeal the

district court’s order dismissing his habeas corpus petition,

(2000), on procedural default grounds.

To be entitled to a certificate of appealability, Wallace must

make “a substantial showing of the denial of a constitutional

right.”

(c)(2) (2000). When a district court

dismisses solely on procedural grounds, the movant “must

demonstrate both (1) ‘that jurists of reason would find it

debatable whether the petition states a valid claim of the denial

of a constitutional right,’ and (2) ‘that jurists of reason would

find it debatable whether the district court was correct in its

procedural ruling.’” Rose v. Lee,

(4th Cir. 2001)

(quoting Slack v. McDaniel,

(2000)), cert. denied,

(2001). Upon examination of Wallace’s petition, we

cannot conclude that reasonable jurists would find it debatable

whether the district court correctly concluded that the petition

was untimely filed. 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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