ON REHEARING
UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 03-7657
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
ERNEST BAILEY,
Defendant - Appellant.
No. 04-6556
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
ERNEST BAILEY,
Defendant - Appellant.
Appeals from the United States District Court for the District of
Maryland, at Baltimore. Marvin J. Garbis, Senior District Judge.
(CR-00-152-MJG; CA-02-4025-MJG)
Submitted: August 20, 2004 Decided: August 31, 2004
Before WIDENER and TRAXLER, Circuit Judges, and HAMILTON, Senior
Circuit Judge.
No. 03-7657 affirmed; No. 04-6556 dismissed by unpublished per
curiam opinion.
Ernest Bailey, Appellant Pro Se. A. David Copperthite, OFFICE OF
THE UNITED STATES ATTORNEY, Baltimore, Maryland, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
See Local Rule 36(c).
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PER CURIAM:
In appeal No. 03-7657, Ernest Bailey appeals the district
court’s order denying relief on his motion to vacate or modify
sentence under 28 U.S.C. § 2255 (2000). The district court granted
a certificate of appealability as to Bailey’s claim of
prosecutorial misconduct in his § 2255 motion. In an opinion
issued on January 28, 2004, we dismissed Bailey’s appeal as
untimely. Bailey petitioned for panel and en banc rehearing,
asserting that the district court had granted him an extension of
time in which to file a notice of appeal pursuant to Fed. R. App.
P. 4(a)(5)(A), and his notice of appeal was therefore timely filed.
Upon consideration of his petition, we granted panel rehearing in
an order filed on May 26, 2004. On rehearing, we have reviewed the
record and find no reversible error. Accordingly, we affirm on the
reasoning of the district court. See United States v. Bailey, Nos.
CR-00-152-MJG; CA-02-4025-MJG (D. Md. filed July 31, 2003 & entered
Aug. 1, 2003).
In appeal No. 04-6556, Bailey seeks to appeal the
district court’s denial of his Fed. R. Civ. P. 60(b) motion seeking
reconsideration of the denial of his § 2255 motion. 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
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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, 338
(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 Bailey 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.
No. 03-7657 AFFIRMED;
No. 04-6556 DISMISSED
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