Opinion
No. 07-7630.
Submitted: January 30, 2008.
Decided: February 15, 2008.
Appeal from the United States District Court for the Eastern District of Virginia, at Alexandria. Leonie M. Brinkema, District Judge. (1:04-cr-00379-LDW; 1:07-cv-00804-LDW).
Anthony Mark Wilson, Appellant Pro Se. G. David Hackney, Assistant United States Attorney, Alexandria, Virginia, for Appellee.
Before NIEMEYER and MICHAEL, Circuit Judges, and HAMILTON, Senior Circuit Judge.
Dismissed by unpublished PER CURIAM opinion.
Unpublished opinions are not binding precedent in this circuit.
Anthony Mark Wilson seeks to appeal the district court's order denying his motion for enlargement of time to file a 28 U.S.C. § 2255 (2000) motion, and construing the motion as his first § 2255 motion and denying that motion, as well as its order denying Wilson's Fed.R.Civ.P. 59(e) motion. The orders are not appealable unless a circuit justice or judge issues a certificate of appealability. See 28 U.S.C. § 2253(c)(1) (2000); Reid v. Angelone, 369 F.3d 363, 369 (4th Cir. 2004) (requiring a certificate of appealability in Fed.R.Civ.P. 60(b) context). 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 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. See 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). We have independently reviewed the record and conclude that Wilson 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.
Because the district court failed to provide Wilson notice and an opportunity to amend his motion for enlargement of time prior to recharacterization, Wilson need not seek this court's authorization to file a future § 2255 motion raising additional claims. See Castro v. United States, 540 U.S. 375, 381-83, 124 S.Ct. 786, 157 L.Ed.2d 778 (2003). We express no opinion, however, regarding whether such a motion would be timely.
DISMISSED.