James v. Boyette - Case Law

                            UNPUBLISHED

                   UNITED STATES COURT OF APPEALS
                       FOR THE FOURTH CIRCUIT


                            No. 02-7581



SMITTIE JAMES,

                                           Petitioner - Appellant,

          versus


BONNIE BOYETTE,

                                            Respondent - Appellee.



Appeal from the United States District Court for the Eastern
District of North Carolina, at Raleigh. Terrence W. Boyle, Chief
District Judge. (CA-02-84-5-BO)


Submitted:   December 19, 2002         Decided:     February 10, 2003


Before WILKINS and KING, Circuit Judges, and HAMILTON, Senior
Circuit Judge.


Dismissed by unpublished per curiam opinion.


Smittie James, Appellant Pro Se. Clarence Joe DelForge, III, OFFICE
OF THE ATTORNEY GENERAL OF NORTH CAROLINA, Raleigh, North Carolina,
for Appellee.


Unpublished opinions are not binding precedent in this circuit.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

     Smittie James, a state prisoner, seeks to appeal the district

court’s order denying relief on his petition filed under 28 U.S.C.

§ 2254 (2000).   An appeal may not be taken from the final order in

a habeas corpus proceeding unless a circuit justice or judge issues

a certificate of appealability.       28 U.S.C. § 2253(c)(1) (2000).

When, as here, a district court dismisses a § 2254 petition solely

on procedural grounds, a certificate of appealability will not

issue unless the petitioner can 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, 252

F.3d 676, 684 (4th Cir.) (quoting Slack v. McDaniel, 529 U.S. 473,

484 (2000)), cert. denied, 122 S. Ct. 318 (2001)). We have reviewed

the record and conclude for the reasons stated by the district

court that James has not made the requisite showing.    See James v.

Boyette, No. CA-02-84-5-BO (E.D.N.C. filed Aug. 19, 2002 & entered

Aug. 20, 2002). Accordingly, we deny a certificate of appealability

and dismiss the appeal. We also deny James’ motion for appointment

of counsel.




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     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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