Opinion
No. 08-7839.
Submitted: January 21, 2010.
Decided: February 16, 2010.
Appeal from the United States District Court for the Northern District of West Virginia, at Clarksburg. Irene M. Keeley, District Judge. (1:07-cv-00115-IMK-JSK; 1:05-cr-00095-IMK-1).
Blair R. Jones, Jr., Appellant Pro Se. John Castle Parr, Assistant United States Attorney, Wheeling, West Virginia, for Appellee.
Before WILKINSON, MOTZ, and DUNCAN, Circuit Judges.
Dismissed by unpublished PER CURIAM opinion.
Unpublished opinions are not binding precedent in this circuit.
Blair R. Jones, Jr., seeks to appeal the district court's order accepting the recommendation of the magistrate judge and denying relief on his 28 U.S.C.A. § 2255 (West Supp. 2009) motion. The order is not appealable unless a circuit justice or judge issues a certificate of appealability. 28 U.S.C. § 2253(c)(1) (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). A prisoner satisfies this standard by demonstrating that reasonable jurists would find that any assessment of the constitutional claims by the district court is debatable or wrong and that any dispositive procedural ruling by the district court is likewise debatable. Miller-El v. Cockrell, 537 U.S. 322, 336-38, 123 S.Ct. 1029, 154 L.Ed.2d 931 (2003); Slack v. McDaniel, 529 U.S. 473, 484, 120 S.Ct. 1595, 146 L.Ed.2d 542 (2000); Rose v. Lee, 252 F.3d 676, 683-84 (4th Cir. 2001).
The district court concluded that Jones' claims challenging the validity of his conviction were barred by the appellate waiver provision in his plea agreement. However, the waiver applies only to claims challenging Jones' sentence. Nevertheless, although the district court committed a procedural error by relying on the waiver provision to dismiss Jones' § 2255 motion, our independent review of the record confirms that, on their merits, the claims Jones raised in his motion do not substantially show that his constitutional rights were infringed. Accordingly, we deny Jones' motion for a certificate of appealability and all pending motions 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.