United States v. Smiley

                              UNPUBLISHED

                   UNITED STATES COURT OF APPEALS
                       FOR THE FOURTH CIRCUIT


                              No. 03-6344



UNITED STATES OF AMERICA,

                                               Plaintiff - Appellee,

          versus


DONALD EUGENE SMILEY,

                                              Defendant - Appellant.



Appeal from the United States District Court for the Eastern
District of Virginia, at Norfolk. Rebecca Beach Smith, District
Judge. (CR-01-213, CA-02-978-2)


Submitted:   April 17, 2003                 Decided:   April 24, 2003


Before WIDENER, WILLIAMS, and MOTZ, Circuit Judges.


Dismissed by unpublished per curiam opinion.


Donald Eugene Smiley, Appellant Pro Se. James Ashford Metcalfe,
Assistant United States Attorney, Norfolk, Virginia, for Appellee.


Unpublished opinions are not binding precedent in this circuit.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

      Donald Eugene Smiley seeks to appeal the district court’s

order dismissing without prejudice his motion filed under 28 U.S.C.

§ 2255 (2000) because the direct appeal of his conviction was still

pending.   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). When,

as here, a district court dismisses a § 2255 motion 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 independently reviewed

the record and conclude that Smiley has not made the requisite

showing.   See Miller-El v. Cockrell,              U.S.       , 123 S.Ct. 1029

(2003).

      Accordingly,     we    deny   a   certificate    of    appealability   and

dismiss the appeal.         We deny Smiley’s motion to consolidate this

appeal with the appeal pending in his criminal case, No. 02-4464.

We   dispense   with   oral    argument      because   the    facts   and   legal




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contentions are adequately presented in the materials before the

court and argument would not aid the decisional process.




                                                           DISMISSED




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