60 FAPPX 467 - United States v. McClain

                              UNPUBLISHED

                   UNITED STATES COURT OF APPEALS
                       FOR THE FOURTH CIRCUIT


                              No. 03-6162



UNITED STATES OF AMERICA,

                                               Plaintiff - Appellee,

          versus


ERNEST ALLEN MCCLAIN,

                                              Defendant - Appellant.



Appeal from the United States District Court for the Northern
District of West Virginia, at Clarksburg. Irene M. Keeley, Chief
District Judge. (CR-94-142, CA-01-71-1)


Submitted:   March 20, 2003                 Decided:   March 31, 2003


Before WILLIAMS and TRAXLER, Circuit Judges, and HAMILTON, Senior
Circuit Judge.


Dismissed by unpublished per curiam opinion.


Ernest Allen McClain, Appellant Pro Se.


Unpublished opinions are not binding precedent in this circuit.
See Local Rule 36(c).
PER CURIAM:

     Ernest Allen McClain seeks to appeal the district court’s

order denying relief on his petition filed under

28 U.S.C. § 2255


(2000).       An appeal may not be taken to this court from the final

order    in    a    habeas       corpus       proceeding       in     which    the    detention

complained of arises out of process issued by a state court 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    §    2241   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.)

(quoting Slack v. McDaniel,

529 U.S. 473, 484

 (2000)), cert.

denied,

534 U.S. 941

 (2001).                   We have independently reviewed the

record    and       conclude      that    McClain       has    not     made    the    requisite

showing.        See       Miller-El      v.    Cockrell,

123 S.Ct. 1029

    (2003).

Accordingly,         we    deny    McClain’s          motion     for    a     certificate       of

appealability and dismiss the appeal.                            We dispense with oral

argument because the facts and legal contentions are adequately




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presented in the materials before the court and argument would not

aid the decisional process.




                                                        DISMISSED




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