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    The United States Court of Appeals for the Fourth Circuit dismissed Anthony Barber's appeal of a district court order. The district court had construed Barber's "Motion for Review of a Sentence" as a motion to vacate under 28 U.S.C. § 2255 and dismissed it as untimely. The Court of Appeals determined that Barber had not made the requisite showing to receive a certificate of appealability, which is required to appeal the dismissal of a § 2255 motion. Specifically, Barber did not demonstrate that reasonable jurists would find his constitutional claims debatable or that the district court's procedural rulings were debatable or wrong. Therefore, the Court of Appeals dismissed Barber's appeal.

    Original Description:

    Filed: 2004-02-18 Precedential Status: Non-Precedential Docket: 03-6442

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    The United States Court of Appeals for the Fourth Circuit dismissed Anthony Barber's appeal of a district court order. The district court had construed Barber's "Motion for Review of a Sentence" as a motion to vacate under 28 U.S.C. § 2255 and dismissed it as untimely. The Court of Appeals determined that Barber had not made the requisite showing to receive a certificate of appealability, which is required to appeal the dismissal of a § 2255 motion. Specifically, Barber did not demonstrate that reasonable jurists would find his constitutional claims debatable or that the district court's procedural rulings were debatable or wrong. Therefore, the Court of Appeals dismissed Barber's appeal.

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    Public Domain
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    5 views2 pages

    United States v. Barber, 4th Cir. (2004)

    Uploaded by

    Scribd Government Docs
    The United States Court of Appeals for the Fourth Circuit dismissed Anthony Barber's appeal of a district court order. The district court had construed Barber's "Motion for Review of a Sentence" as a motion to vacate under 28 U.S.C. § 2255 and dismissed it as untimely. The Court of Appeals determined that Barber had not made the requisite showing to receive a certificate of appealability, which is required to appeal the dismissal of a § 2255 motion. Specifically, Barber did not demonstrate that reasonable jurists would find his constitutional claims debatable or that the district court's procedural rulings were debatable or wrong. Therefore, the Court of Appeals dismissed Barber's appeal.

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    of 2

    UNPUBLISHED

    UNITED STATES COURT OF APPEALS


    FOR THE FOURTH CIRCUIT

    No. 03-6442

    UNITED STATES OF AMERICA,


    Plaintiff - Appellee,
    versus
    ANTHONY D. BARBER,
    Defendant - Appellant.

    Appeal from the United States District Court for the Eastern
    District of North Carolina, at Fayetteville. Malcolm J. Howard,
    District Judge. (CR-94-36-H)

    Submitted:

    November 26, 2003

    Decided:

    February 18, 2004

    Before TRAXLER, KING, and GREGORY, Circuit Judges.

    Dismissed by unpublished per curiam opinion.

    Anthony D. Barber, Appellant Pro Se.


    Rudolf A. Renfer, Jr.,
    Assistant United States Attorney, Raleigh, North Carolina, for
    Appellee.

    Unpublished opinions are not binding precedent in this circuit.


    See Local Rule 36(c).

    PER CURIAM:
    Anthony D. Barber seeks to appeal the district courts
    order dismissing as untimely his Motion for Review of a Sentence
    Under 18 U.S.C. 3742 and Notice of Appeal, which the district
    court construed as a motion to vacate under 28 U.S.C. 2255
    (2000).
    judge

    The order is not appealable unless a circuit justice or


    issues

    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


    his constitutional claims are debatable 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 (2003);

    Slack v. McDaniel, 529 U.S. 473, 484 (2000); Rose v. Lee, 252 F.3d
    676, 683 (4th Cir. 2001).

    We have independently reviewed the

    record and conclude that Barber 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 -

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