UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 07-6844
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
JOSEPH MCCOY POWELL,
Defendant - Appellant.
Appeal from the United States District Court for the Eastern
District of North Carolina, at New Bern. Terrence W. Boyle,
District Judge. (2:93-cr-00004-BO; 2:98-cv-28-BO)
Submitted: November 28, 2007 Decided: December 14, 2007
Before MICHAEL, KING, and SHEDD, Circuit Judges.
Dismissed by unpublished per curiam opinion.
Joseph McCoy Powell, Appellant Pro Se. Steve R. Matheny, OFFICE OF
THE UNITED STATES ATTORNEY, Raleigh, North Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Joseph McCoy Powell seeks to appeal the district court’s
order denying relief on his Fed. R. Civ. P. 60(b) motion for
reconsideration of the district court’s previous order dismissing
as untimely his 28 U.S.C. § 2255 (2000) motion, and a subsequent
order denying his Fed. R. Civ. P. 59(e) motion to alter or amend
judgment. The orders are not appealable unless a circuit justice
or judge issues a certificate of appealability. 28 U.S.C.
§ 2253(c)(1) (2000); Reid v. Angelone, 369 F.3d 363, 369 (4th Cir.
2004). 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 any
assessment of the constitutional claims by the district court is
debatable or wrong and that any dispositive procedural ruling by
the district court is likewise debatable. Miller-El v. Cockrell,
537 U.S. 322, 336-38 (2003); Slack v. McDaniel, 529 U.S. 473, 484
(2000); Rose v. Lee, 252 F.3d 676, 683-84 (4th Cir. 2001). We have
independently reviewed the record and conclude that Powell has not
made the requisite showing.* Accordingly, we deny a certificate of
*
Because Powell’s convictions became final prior to the
effective date of the AEDPA, he had until April 24, 1997 (one year
after the effective date of the statute), to file his § 2255
motion. Hernandez v. Caldwell, 225 F.3d 435, 438-39 (4th Cir.
2000). We therefore agree with Powell that the district court
erred in concluding that he had only until November 28, 1995, to
file a timely § 2255 motion. However, we conclude that a
certificate of appealability is not warranted because the district
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appealability, deny leave to proceed in forma pauperis, 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
court correctly held that Powell’s Rule 60(b) motion was not
timely.
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