United States v. Hodges

UNPUBLISHED

UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT

No. 09-6042

UNITED STATES OF AMERICA,

Plaintiff - Appellee,

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Dismissed by unpublished per curiam opinion.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Unpublished opinions are not binding precedent in this circuit.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