UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 09-7943
UNITED STATES OF AMERICA,
Plaintiff – Appellee,
v.
JOHNNIE ELVIN MCKELVEY,
Defendant - Appellant.
Appeal from the United States District Court for the District of
South Carolina, at Charleston. David C. Norton, Chief District
Judge. (2:02-cr-00516-DCN-1; 2:09-cv-70080-DCN)
Submitted: December 15, 2009 Decided: December 22, 2009
Before MICHAEL and DUNCAN, Circuit Judges, and HAMILTON, Senior
Circuit Judge.
Dismissed by unpublished per curiam opinion.
Johnnie Elvin McKelvey, Appellant Pro Se. Robert Nicholas
Bianchi, OFFICE OF THE UNITED STATES ATTORNEY, Charleston, South
Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Johnnie Elvin McKelvey 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, 484-85
(2000); Rose v. Lee, 252 F.3d 676, 683-84 (4th Cir. 2001). We
have independently reviewed the record and conclude that
McKelvey 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