                              UNPUBLISHED

                   UNITED STATES COURT OF APPEALS
                       FOR THE FOURTH CIRCUIT


                              No. 02-7211



UNITED STATES OF AMERICA,

                                                Plaintiff - Appellee,

          versus


DAVID WILBERT SHANTON, SR.,

                                               Defendant - Appellant.



Appeal from the United States District Court for the Northern
District of West Virginia, at Martinsburg. W. Craig Broadwater,
District Judge. (CR-89-250, CA-01-81)


Submitted:   December 11, 2002              Decided:   January 3, 2003


Before NIEMEYER, WILLIAMS, and TRAXLER, Circuit Judges.


Dismissed by unpublished per curiam opinion.


David Wilbert Shanton, Sr., Appellant Pro Se.      Thomas Oliver
Mucklow, Assistant United States Attorney, Martinsburg, West
Virginia; Sherry L. Muncy, OFFICE OF THE UNITED STATES ATTORNEY,
Clarksburg, West Virginia, for Appellee.


Unpublished opinions are not binding precedent in this circuit.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

     David Wilbert Shanton, Sr., seeks to appeal the district

court’s order accepting the recommendation of the magistrate judge

and denying relief on his motion filed under 28 U.S.C. § 2255

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

order in a § 2255 proceeding unless a circuit justice or judge

issues a certificate of appealability.        28 U.S.C. § 2253(c)(1)

(2000).    A certificate of appealability will not issue for claims

dismissed by a district court solely on procedural grounds unless

the movant can demonstrate both “(1) ‘that jurists of reason would

find it debatable whether the [motion] 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, 122 S. Ct. 318 (2001).        We have reviewed the record and



     *
       Shanton filed his notice of appeal more than sixty days
after the district court entered its order on the docket, see Fed.
R. App. P. 4(a)(1), and failed to obtain an extension or reopening
of the appeal period, see Fed. R. App. P. 4(a)(5), (6). We have
jurisdiction to consider this appeal, however, because the district
court’s order was not entered on a separate judgment as required by
Fed. R. Civ. P. 58. See Hughes v. Halifax County Sch. Bd., 823
F.2d 832, 835 (4th Cir. 1987) (finding that five-page order did not
satisfy separate judgment where order contained procedural history
of case and district court’s reasoning). Thus, the appeal period
never began to run, and Shanton’s appeal may not be dismissed as
untimely. See Quinn v. Haynes, 234 F.3d 837, 843 (4th Cir. 2000),
cert. denied, 532 U.S. 1024 (2001).


                                  2
conclude for the reasons stated by the district court that Shanton

has not made the requisite showing.    See Slack, 529 U.S. at 484.

Accordingly, we deny a certificate of appealability and dismiss the

appeal.   See 28 U.S.C. § 2253(c)(1)(B); Slack, 529 U.S. at 484.   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




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