U.S. Court of Appeals for the Fourth Circuit, 2004

United States v. DeBardeleben

United States v. DeBardeleben
U.S. Court of Appeals for the Fourth Circuit · Decided August 10, 2004 · Williams, King, Gregory
103 F. App'x 524

United States v. DeBardeleben

Opinion

PER CURIAM:

James M. DeBardeleben seeks to appeal the district court’s order dismissing as successive his motion to vacate, set aside, or correct sentence filed under 28 U.S.C. § 2255 (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. 28 U.S.C. § 2253(c)(1) (2000). 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 that his constitutional claims are debatable and that any dispositive procedural rulings by the district court are also debatable or wrong. See Miller-El v. Cockrell, 537 U.S. 322, 338, 123 S.Ct. 1029, 154 L.Ed.2d 931 (2003); Slack v. McDaniel, 529 U.S. 473, 484, 120 S.Ct. 1595, 146 L.Ed.2d 542 (2000); Rose v. Lee, 252 F.3d 676, 683 (4th Cir. 2001). We have independently reviewed the record and conclude that DeBardeleben has not made the requisite showing. Accordingly, we deny a certificate of appealability and dismiss the appeal. No active judge of this court has voted to grant hearing en banc and we therefore deny DeBardeleben’s petition for initial hearing en banc.

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

*

By order filed April 6, 2004, this appeal was placed in abeyance for Jones v. Braxton, No. 03-6891. In view of our recent decision in Reid. v. Angelone, 369 F.3d 363 (4th Cir. 2004), we no longer find it necessary to hold this, case in abeyance for Jones.

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