United States v. Hodges

UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 09-6042 UNITED STATES OF AMERICA, Plaintiff - Appellee, v. ERNEST FREDERICK HODGES, JR., Defendant - Appellant. Appeal from the United States District Court for the Western District of Virginia, at Roanoke. Samuel G. Wilson, District Judge. (7:05-cr-00040-SGW-MFU-1; 7:08-cv-80088-SGW-MFU) Submitted: August 20, 2009 Decided: August 26, 2009 Before WILKINSON and MICHAEL, Circuit Judges, and HAMILTON, Senior Circuit Judge. Dismissed by unpublished per curiam opinion. Ernest Frederick Hodges, Jr., Appellant Pro Se. Ronald Andrew Bassford, Assistant United States Attorney, Roanoke, Virginia, for Appellee. Unpublished opinions are not binding precedent in this circuit. PER CURIAM: Ernest Frederick Hodges, Jr., seeks to appeal the district court’s order dismissing as untimely his 28 U.S.C.A. § 2255 (West Supp. 2009) motion. 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 Hodges 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