UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

No. 04-6002

UNITED STATES OF AMERICA,

Plaintiff - Appellee,

versus

TIMOTHY ALEXANDER RUSH,

Defendant - Appellant.

Appeal from the United States District Court for the Western

District of Virginia, at Charlottesville. Norman K. Moon, District

Judge. (CR-99-86; CA-01-903)

Submitted: May 24, 2004 Decided: June 4, 2004

Before WILKINSON, MOTZ, and DUNCAN, Circuit Judges.

Dismissed by unpublished per curiam opinion.

Timothy Alexander Rush, Appellant Pro Se. Morgan Eugene Scott,

Acting United States Attorney, Roanoke, Virginia; Bruce A. Pagel,

OFFICE OF THE UNITED STATES ATTORNEY, Charlottesville, Virginia,

for Appellee.

Unpublished opinions are not binding precedent in this circuit.

See Local Rule 36(c).
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PER CURIAM:

Timothy Alexander Rush appeals the district court’s order

denying relief on his motion filed under 28 U.S.C. § 2255 (2000).

An appeal may not be taken 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 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 his constitutional claims are debatable and

that any dispositive procedural rulings by the district court are

also debatable or wrong. Miller-El v. Cockrell, 537 U.S. 322

(2003); Slack v. McDaniel, 529 U.S. 473, 484 (2000); Rose v. Lee,

252 F.3d 676, 683 (4th Cir. 2001). We have independently reviewed

the record and conclude that Rush has not made the requisite

showing. 

The district court found Rush’s trial counsel ineffective

for failing to note a timely appeal and, by order filed November

10, 2003, Rush’s judgment and commitment order were re-entered.

Rush timely appealed his conviction, raising five issues, including

a claim that his plea agreement was unconstitutional. This Court

affirmed Rush’s conviction and sentence. See United States v.

Rush, No. 04-4000 (4th Cir. May 19, 2004). Rush raised a claim

that his guilty plea was unconstitutional in his § 2255 motion. On
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appeal Rush asserts the same claim challenging the

constitutionality of his guilty plea that was presented in his

direct appeal. An issue previously decided on direct appeal may

not be raised on collateral review. See Boeckenhaupt v. United

States, 537 F.2d 1182, 1183 (4th Cir. 1976). 

Rush also raises the following claims on appeal:

(1) trial counsel failed to provide him with certain discovery

materials; and (2) malicious prosecution. However, because he

raises these claims for the first time on appeal and fails to show

exceptional circumstances for his failure to raise them at an

earlier stage, we are foreclosed from considering them on appeal.

See Muth v. United States, 1 F.3d 246, 250 (4th Cir. 1993). 

Accordingly, we deny a certificate of appealability and

dismiss Rush’s 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