US v. Nguyen, (4th Cir. 2005)

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UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

No. 05-7441

UNITED STATES OF AMERICA,

Plaintiff - Appellee,

versus

KHOI D. NGUYEN,

Defendant - Appellant.

Appeal from the United States District Court for the Eastern

District of Virginia, at Alexandria. T. S. Ellis III, District

Judge. (CR-02-283; CA-05-244)

Submitted: December 15, 2005 Decided: December 21, 2005

Before MICHAEL and DUNCAN, Circuit Judges, and HAMILTON, Senior

Circuit Judge.

Dismissed by unpublished per curiam opinion.

Khoi D. Nguyen, Appellant Pro Se. Curtis V. Gomez, OFFICE OF THE

UNITED STATES ATTORNEY, Alexandria, Virginia, for Appellee.

Unpublished opinions are not binding precedent in this circuit.

See Local Rule 36(c).

PER CURIAM: Khoi D. Nguyen, a federal prisoner, seeks to appeal the district court's order dismissing his motion filed under 28 U.S.C. § 2255 (2000), 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) (2000). 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) (2000).

A prisoner satisfies this standard by demonstrating that reasonable jurists would find that the district court's assessment of his constitutional claims is debatable or wrong and that any dispositive procedural rulings by the district court are also debatable or wrong. See 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 Nguyen 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

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