Public-domain · open source
OpenJurist

51 F. App'x 128

Wade v. Haines

U.S. Courts of Appeals

Decided November 22, 2002

U.S. Courts of Appeals · decided 2002-11-22

Applies 28 U.S.C. § 2253 (Antiterrorism and Effective Death Penalty Act of 1996) · 28 U.S.C. § 2254 (Antiterrorism and Effective Death Penalty Act of 1996)

Relies on Slack v. McDaniel · Rose v. Lee

Dismissed by unpublished PER CURIAM opinion · Decided 2002-11-22

PER CURIAM.

¶1 Gary M. Wade seeks to appeal the district court’s order adopting the magistrate judge’s report and dismissing as untimely his petition filed under 28 U.S.C. § 2254 (2000). An appeal may not be taken from the final order in a habeas corpus proceeding unless a circuit justice or judge issues a certificate of appealability. 28 U.S.C. § 2253(c)(1) (2000). When, as here, a district court dismisses a § 2254 petition solely on procedural grounds, a certificate of appealability will not issue unless the petitioner can demonstrate both “(1) ‘that jurists of reason would find it debatable whether the petition states a valid claim of the denial of a constitutional right’ and (2) ‘that jurists of reason would find it debatable whether the district court was correct in its procedural ruling.’ ” Rose v. Lee, 252 F.3d 676, 684 (4th Cir.2001) (quoting Slack v. McDaniel, 529 U.S. 473, 484, 120 S.Ct. 1595, 146 L.Ed.2d 542 (2000)). We have reviewed the record and conclude for the reasons stated by the district court that Wade has not made the requisite showing. See Wade v. Haines, No. CA-01-102-5 (N.D.W.Va. July 1, 2002). Accordingly, we deny a certificate of appealability and dis *129 miss 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.

¶2 DISMISSED.

/51/fappx/128 · .json · Public domain