ON PETITION FOR REHEARING
UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 02-6276
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
ERIC E. ALVAREZ,
Defendant - Appellant.
Appeal from the United States District Court for the Eastern
District of North Carolina, at Wilmington. Malcolm J. Howard,
District Judge. (CR-97-47; CA-01-75-H)
Submitted: January 14, 2004 Decided: February 11, 2004
Before NIEMEYER and SHEDD, Circuit Judges, and HAMILTON, Senior
Circuit Judge.
Dismissed by unpublished per curiam opinion.
Eric E. Alvarez, Appellant Pro Se. Robert Edward Skiver, Assistant
United States Attorney, Raleigh, North Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
See Local Rule 36(c).
PER CURIAM:
Eric E. Alvarez has filed a petition for rehearing and
for rehearing en banc following our dismissal of his appeal based
upon our conclusion and the district court’s finding that his
notice of appeal was untimely filed. See United States v. Alvarez,
No. 02-6276, 2003 WL 22057029 (4th Cir. Sept. 3, 2003) (per
curiam). Alvarez asserted on reconsideration in the district court
that because no separate entry of judgment followed the district
court’s dismissal of his 28 U.S.C. § 2255 (2000) motion on August
6, 2001, the time period for filing a notice of appeal never began
to run. See Fed. R. Civ. P. 58, Quinn v. Haynes, 234 F.3d 837, 843
(4th Cir. 2000). The district court granted reconsideration and
found Alvarez’s notice of appeal timely as to the August 6 order.*
Accordingly, we granted Alvarez’s petition for panel rehearing and
denied his petition for rehearing en banc. We now deny a
certificate of appealability and dismiss the appeal.
The district court’s order denying relief under § 2255 is
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
*
Both this court and the district court previously concluded
that Alvarez’s notice of appeal was not timely as to the district
court’s order of November 16, 2001, denying his motion for
reconsideration. Because the separate document rule does not apply
to post-judgment motions, we dismiss as untimely the appeal of the
November 16 order.
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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 (2003);
Slack v. McDaniel, 529 U.S. 473, 484 (2000); Rose v. Lee, 252 F.3d
676, 683 (4th Cir. 2001). We have independently reviewed the
record and conclude that Alvarez has not made the requisite showing.
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
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