United States v. McClung

                            UNPUBLISHED

                   UNITED STATES COURT OF APPEALS
                       FOR THE FOURTH CIRCUIT


                            No. 02-7654



UNITED STATES OF AMERICA,

                                               Plaintiff - Appellee,

          versus


JEFFREY PRESTON MCCLUNG,

                                            Defendant - Appellant.



Appeal from the United States District Court for the Western
District of Virginia, at Roanoke. James C. Turk, Senior District
Judge. (CR-97-30031, CA-02-700-7)


Submitted:   February 20, 2003         Decided:     February 26, 2003


Before LUTTIG, MOTZ, and GREGORY, Circuit Judges.


Dismissed by unpublished per curiam opinion.


Jeffrey Preston McClung, Appellant Pro Se. Ray B. Fitzgerald, Jr.,
OFFICE OF THE UNITED STATES ATTORNEY, Charlottesville, Virginia,
for Appellee.


Unpublished opinions are not binding precedent in this circuit.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

     Jeffrey Preston McClung, a federal prisoner, seeks to appeal

the district court’s order denying relief on his motion filed under

28 U.S.C. § 2255 (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).    A certificate of appealability will not issue for claims

addressed by a district court on the merits absent “a substantial

showing of the denial of a constitutional right.”         28 U.S.C.

§ 2253(c)(2) (2000).    As to claims dismissed by a district court

solely on procedural grounds, a certificate of appealability will

not issue unless the movant 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, 534 U.S. 941 (2001).    We have reviewed

the record and conclude for the reasons stated by the district

court that McClung has not made the requisite showing.   See United

States v. McClung, Nos. CR-97-30031; CA-02-700-7 (W.D. Va. May 31,

2002).    Accordingly, we deny McClung’s motion for a certificate of

appealability and dismiss the appeal.        We dispense with oral

argument because the facts and legal contentions are adequately


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presented in the materials before the court and argument would not

aid the decisional process.




                                                        DISMISSED




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