UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 03-7574
RAYMOND OUTLER,
Petitioner - Appellant,
versus
JOYCE K. CONLEY,
Respondent - Appellee.
Appeal from the United States District Court for the Southern
District of West Virginia, at Beckley. David A. Faber, Chief
District Judge. (CA-99-213-5)
Submitted: February 25, 2004 Decided: November 4, 2004
Before MICHAEL, MOTZ, and TRAXLER, Circuit Judges.
Dismissed by unpublished per curiam opinion.
Raymond Outler, Appellant Pro Se. 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Unpublished opinions are not binding precedent in this circuit.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:
Raymond Outler appeals the district court’s order
accepting the report and recommendation of a magistrate judge and
denying his Fed. R. Civ. P. 60(b)(5) motion to reconsider the
earlier denial of his 28 U.S.C. § 2241 (2000) petition. Outler
argues that the denial of his § 2241 petition was based in part on
a Southern District of Georgia district court’s improper decision
to recharacterize a motion for a new trial as a proceeding under 28
U.S.C. § 2255 (2000). The Georgia district court did not give
Outler notice of its intent to recharacterize the motion, warn him
that the effect of the recharacterization is that any subsequent
§ 2255 motion will be subject to the restrictions on second or
successive habeas motions, or provide him with an opportunity to
withdraw or amend the motion. See Castro v. United States, 124 S.
Ct. 786 (2003); see also United States v. Emmanuel, 288 F.3d 644,
649 (4th Cir. 2002).
However, we find no reversible error in this case.
Outler’s convictions became final before the inception of the
AEDPA; therefore, he could file a § 2255 motion no later than April
24, 1997. Outler did not file the § 2241 petition, in which he
clearly sought habeas relief, until March 16, 1999, well beyond the
one-year statute of limitations applicable to habeas motions.
Thus, even if the Georgia district court had provided Outler with
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the notice and warnings required under Castro and Emmanuel, Outler
could not have salvaged any habeas claim in his § 2241 petition.
See, e.g., Emmanuel, 288 F.3d at 650 (providing that where the
failure to provide notice to movant results in no adverse
consequences, such failure is harmless error).
The denial of a Rule 60(b) motion is a final order and
subject to 28 U.S.C. § 2253(c)(1)’s certificate of appealability
requirement. Reid v. Angelone, 369 F.3d 363, 369 (4th Cir. 2004).
A final order in a § 2255 action 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 showing of the denial of a constitutional
right.” 28 U.S.C. § 2253(c)(2) (2000). Outler may satisfy this
requirement 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 Outler has not made the requisite
showing.
Accordingly, we deny a certificate of appealability, deny
Outler’s motion for summary disposition and dismiss this appeal.
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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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