Wallace v. Dotson

ON PETITION FOR REHEARING UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 02-7353 FRED WALLACE, JR., Petitioner - Appellant, versus S. DOTSON, Warden, Respondent - Appellee.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: February 13, 2003 Decided: March 21, 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 Dismissed by unpublished per curiam opinion.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 Unpublished opinions are not binding precedent in this circuit.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, 28 U.S.C. § 2254 (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.” 28 U.S.C. § 2253(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, 252 F.3d 676, 684 (4th Cir.) (quoting Slack v. McDaniel, 529 U.S. 473 (2000)), cert. denied, 534 U.S. 941 (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 procedurally defaulted. 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 2