UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 08-8455
UNITED STATES OF AMERICA,
Plaintiff – Appellee,
v.
KENNETH R. HYATT,
Defendant – Appellant.
Appeal from the United States District Court for the Eastern
District of North Carolina, at Raleigh. James C. Fox, Senior
District Judge. (7:02-cr-00013-F-2; 7:06-cv-00173-F)
Submitted: August 10, 2009 Decided: October 2, 2009
Before NIEMEYER, MICHAEL, and SHEDD, Circuit Judges.
Dismissed by unpublished per curiam opinion.
Milton Gordon Widenhouse, Jr., RUDOLF, WIDENHOUSE & FIALKO,
Chapel Hill, North Carolina, for Appellant. Rudolf A. Renfer,
Jr., Assistant United States Attorney, Raleigh, North Carolina,
for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Kenneth R. Hyatt 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); Miller-El
v. Cockrell, 537 U.S. 322, 336-38 (2003). For claims dismissed
on procedural grounds, this standard is satisfied by showing
both that jurists of reason would find it debatable whether the
motion states a valid claim of the denial of a constitutional
right and that jurists of reason would find it debatable whether
the district court was correct in its procedural ruling. 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 Hyatt 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