United States v. Henderson

                               UNPUBLISHED

                   UNITED STATES COURT OF APPEALS
                       FOR THE FOURTH CIRCUIT


                               No. 04-6960



UNITED STATES OF AMERICA,

                                               Plaintiff - Appellee,

          versus


MARK EARL HENDERSON,

                                              Defendant - Appellant.


Appeal from the United States District Court for the Southern
District of West Virginia, at Charleston. Joseph Robert Goodwin,
District Judge. (CR-99-214; CA-03-480-2)


Submitted:   August 13, 2004             Decided:   September 9, 2004


Before WIDENER, LUTTIG, and MICHAEL, Circuit Judges.


Dismissed by unpublished per curiam opinion.


John David Wooton, WOOTON, WOOTON & FRAGILE, Beckley, West
Virginia, Marcia Gail Shein, LAW OFFICE OF MARCIA G. SHEIN, P.C.,
Decatur, Georgia, for Appellant. Michael Lee Keller, OFFICE OF THE
UNITED STATES ATTORNEY, Charleston, West Virginia, for Appellee.


Unpublished opinions are not binding precedent in this circuit.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

            Mark Earl Henderson seeks to appeal the district court’s

order adopting the magistrate judge’s report and recommendation and

dismissing his 28 U.S.C. § 2255 (2000) motion.               Henderson cannot

appeal this order unless a circuit judge or justice issues a

certificate of appealability, and 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 habeas

appellant meets 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,

326 (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   Henderson   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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