United States v. Promise

U.S. Court of Appeals for the Fourth Circuit
United States v. Promise, 113 F. App'x 510 (4th Cir. 2004)

United States v. Promise

Opinion

PER CURIAM:

Marion Promise, a federal prisoner, seeks to appeal the district court’s order denying relief on his motion to file a belated appeal from the court’s denial of his motion to extend the one-year limitations period in 28 U.S.C. § 2255 ¶ 6 (2000), and the order denying his motion filed under Fed.R.Civ.P. 59(e). The orders are not appealable 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, 336, 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 Promise has not made the requisite showing. Although we find that the district court’s reliance on the Federal Rules of Appellate Procedure applicable to criminal cases is debatable or wrong, see United States v. Hayman, 342 U.S. 205, 209 n. 4, 72 S.Ct. 263, 96 L.Ed. 232 (1952) (“Appeals from orders denying motions under Section 2255 are governed by the civil rules applicable to appeals from final judgments in habeas corpus actions.”), Promise has failed to demonstrate a substantial showing of the denial of a constitutional right. 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 ma *512 terials before the court and argument would not aid the decisional process.

DISMISSED

Reference

Full Case Name
UNITED STATES of America, Plaintiff-Appellee, v. Marion PROMISE, A/K/A Mario, Defendant-Appellant
Status
Unpublished