UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 04-6430
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
EMMETT MADISON GRAHAM, JR.,
Defendant - Appellant.
No. 04-6807
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
EMMETT MADISON GRAHAM, JR.,
Defendant - Appellant.
Appeals from the United States District Court for the Eastern
District of North Carolina, at Wilmington. James C. Fox, Senior
District Judge. (CR-97-98; CA-03-53-7-F; CA-00-206-F)
Submitted: July 26, 2004 Decided: August 10, 2004
Before LUTTIG and MOTZ, Circuit Judges, and HAMILTON, Senior
Circuit Judge.
No. 04-6430 dismissed; No. 04-6807 affirmed by unpublished per
curiam opinion.
Emmett Madison Graham, Jr., Appellant Pro Se. Michael Gordon,
James, Assistant United States Attorney, Paul Martin Newby, OFFICE
OF THE UNITED STATES ATTORNEY, Raleigh, North Carolina, for
Appellee.
Unpublished opinions are not binding precedent in this circuit.
See Local Rule 36(c).
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PER CURIAM:
Emmett Madison Graham, Jr., seeks to appeal the district
court’s orders denying relief on his motion filed under 28 U.S.C.
§ 2255 (2000), denying a certificate of appealability, and denying
a motion for return of property in a criminal case. 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 absent “a substantial 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 Graham has not made the
requisite showing. Accordingly, we deny Graham’s motion for a
certificate of appealability and dismiss the appeal in 04-6430.
The district court order appealed from in 04-6807, regarding the
motion for return of property in a criminal case, is affirmed. The
district court properly denied Graham’s motion for return of
property because the issue was previously decided by the district
court and is pending on appeal. We dispense with oral argument
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because the facts and legal contentions are adequately presented in
the materials before the court and argument would not aid the
decisional process.
No. 04-6430 DISMISSED
No. 04-6807 AFFIRMED
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