UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 01-7942
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
BERNARD DONNELL SHERRILL, a/k/a Nard,
Defendant - Appellant.
Appeal from the United States District Court for the Western
District of North Carolina, at Charlotte. Terrence W. Boyle, Chief
District Judge. (CR-95-5; CA-98-444-3)
Submitted: July 30, 2004 Decided: August 23, 2004
Before MOTZ and KING, Circuit Judges, and HAMILTON, Senior Circuit
Judge.
Dismissed by unpublished per curiam opinion.
Bernard Donnell Sherrill, Appellant Pro Se. Gretchen C. F.
Shappert, United States Attorney, Charlotte, North Carolina, for
Appellee.
Unpublished opinions are not binding precedent in this circuit.
See Local Rule 36(c).
PER CURIAM:
Bernard Donnell Sherrill appeals the district court’s
order denying relief on his 28 U.S.C. § 2255 (2000) motion and
denying his motion to amend the § 2255 motion, and a subsequent
order denying his motion for reconsideration.* 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). 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,
*
We initially remanded this case to the district court for a
determination as to whether Sherrill could show good cause or
excusable neglect with respect to his untimely notice of appeal.
See United States v. Sherrill, 2002 WL 704673 (4th Cir. Apr. 24,
2002) (unpublished). The district court found that Sherrill had
shown excusable neglect to justify the late filing. We remanded to
the district court a second time for a determination as to whether
Sherrill filed his motion for reconsideration within ten days of
the entry of judgment. See United States v. Sherrill, 2003 WL
21983723 (4th Cir. Aug. 21, 2003) (unpublished). The district
court has concluded that Sherrill submitted his motion for
reconsideration within ten days of the entry of judgment. Because
we do not find this factual determination clearly erroneous, United
States v. Gypsum, 333 U.S. 364, 395 (1948), we conclude that we
have jurisdiction over Sherrill’s appeal of both the underlying
denial of Sherrill’s § 2255 motion and the denial of his motion for
reconsideration.
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252 F.3d 676, 683 (4th Cir. 2001). We have independently reviewed
the record and conclude that Sherrill has not made the requisite
showing.
Accordingly, while we grant Sherrill’s motion for
permission to file an oversized informal brief, 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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