Opinion
No. 13-6113
04-23-2013
UNITED STATES OF AMERICA, Plaintiff - Appellee, v. TONY GLENN AVANT, Defendant - Appellant.
Tony Glenn Avant, Appellant Pro Se. John Samuel Bowler, OFFICE OF THE UNITED STATES ATTORNEY, Raleigh, North Carolina, for Appellee.
UNPUBLISHED
Appeal from the United States District Court for the Eastern District of North Carolina, at Raleigh. Malcolm J. Howard, Senior District Judge. (5:02-cr-00133-H-1; 5:12-cv-00026-H) Before WILKINSON, GREGORY, and DAVIS, Circuit Judges. Dismissed by unpublished per curiam opinion. Tony Glenn Avant, Appellant Pro Se. John Samuel Bowler, OFFICE OF THE UNITED STATES ATTORNEY, Raleigh, North Carolina, for Appellee. Unpublished opinions are not binding precedent in this circuit. PER CURIAM:
Tony Glenn Avant seeks to appeal the district court's order dismissing as untimely his 28 U.S.C.A. § 2255 (West Supp. 2012) motion. The order is not appealable unless a circuit justice or judge issues a certificate of appealability. 28 U.S.C. § 2253(c)(1)(B) (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). When the district court denies relief on procedural grounds, the prisoner must demonstrate both that the dispositive procedural ruling is debatable, and that the motion states a debatable claim of the denial of a constitutional right. Slack v. McDaniel, 529 U.S. 473, 484-85 (2000).
We have independently reviewed the record and conclude that Avant 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 this court and argument would not aid the decisional process.
DISMISSED