United States v. Cupp

UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 09-6245 UNITED STATES OF AMERICA, Plaintiff – Appellee, v. STEVEN ORVILLE CUPP, Defendant – Appellant. Appeal from the United States District Court for the Western District of Virginia, at Harrisonburg. Samuel G. Wilson, District Judge. (5:00-cr-30072-sgw-mfu-1; 5:08-cv-80086-sgw- mfu) Submitted: June 18, 2009 Decided: June 24, 2009 Before NIEMEYER, GREGORY, and DUNCAN, Circuit Judges. Dismissed by unpublished per curiam opinion. Steven Cupp, Appellant Pro Se. Jeb Thomas Terrien, Assistant United States Attorney, Harrisonburg, Virginia, for Appellee. Unpublished opinions are not binding precedent in this circuit. PER CURIAM: Steven Orville Cupp seeks to appeal the district court’s order dismissing his 28 U.S.C.A. § 2255 (West Supp. 2009) motion as untimely filed. The order is not appealable unless a circuit justice or judge issues a certificate of appealability. 28 U.S.C. § 2253(c)(1) (2006). 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) (2006). 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 Cupp 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 2