                            UNPUBLISHED

                   UNITED STATES COURT OF APPEALS
                       FOR THE FOURTH CIRCUIT


                            No. 03-6577



REGINALD ANTHONY FALICE,

                                             Petitioner - Appellant,

          versus


UNITED STATES OF AMERICA,

                                              Respondent - Appellee.



Appeal from the United States District Court for the Western
District of North Carolina, at Charlotte. Richard L. Voorhees,
District Judge. (CR-98-244-3, CA-03-68-3-2-MU)


Submitted:   October 22, 2003          Decided:     December 12, 2003


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


Dismissed by unpublished per curiam opinion.


Reginald Anthony Falice, Appellant Pro Se.


Unpublished opinions are not binding precedent in this circuit.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

     Reginald Anthony Falice seeks to appeal the district court’s

order dismissing his pleading construed as a 28 U.S.C. § 2255

(2000) motion.    Falice cannot appeal this order unless a circuit

judge or justice issues a certificate of appealability, and 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 habeas appellant meets this standard by

demonstrating    that   reasonable       jurists    would   find     that   his

constitutional   claims   are   debatable     and    that   any    dispositive

procedural rulings by the district court are also debatable or

wrong.   See Miller-El v. Cockrell, 537 U.S. 322,                 , 123 S. Ct.

1029, 1039 (2003); Slack v. McDaniel, 529 U.S. 473, 484 (2000);

Rose v. Lee, 252 F.3d 676, 683 (4th Cir.), cert. denied, 534 U.S.

941 (2001). We have independently reviewed the record and conclude

Falice has not made the requisite showing.          Accordingly, we deny a

certificate of appealability and dismiss the appeal.*              We dispense


     *
       The district court relied on United States v. Torres, 211,
F.3d 836, 837 (4th Cir. 2000) to determine that Falice’s conviction
became final when this Court issued its mandate affirming his
conviction and sentence on direct appeal. Applying Torres, the
district court found that Falice’s petition was untimely because it
was filed more than one year after we issued a mandate affirming
his conviction on direct appeal. The United States Supreme Court
has since held that where, as here, a federal prisoner does not
challenge an appellate court’s affirmance of his conviction and
sentence by petitioning for certiorari in the United States Supreme
Court, his conviction does not become final until the time expires
for him to do so. Clay v. United States, 537 U.S. 522,     , 123 S.
Ct. 1072 (2003). For this appeal, we have assumed Falice filed his

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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




pleading on the date he signed it, Houston v. Lack, 487 U.S. 266,
276 (1988), and applied Clay to determine that Falice’s pleading
was timely under the AEDPA, 28 U.S.C. § 2244(d)(1) (2000). However,
Falice’s pleading fails to establish he can make a substantial
showing of the denial of a constitutional right, and consequently,
Falice establishes no grounds that warrant the issuance of a
certificate of appealability.


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