UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

No. 07-6513

UNITED STATES OF AMERICA,

Plaintiff - Appellee,

versus

ANTHONY CHATANE WHITE,

Defendant - Appellant.

No. 07-7095

ANTHONY CHATANE WHITE,

Plaintiff - Appellant,

versus

UNITED STATES OF AMERICA,

Defendant - Appellee.

Appeals from the United States District Court for the District of

South Carolina, at Anderson. Henry M. Herlong, Jr., District

Judge. (8:04-cr-00632-HMH; 8:07-cv-70064-HMH)

Submitted: September 26, 2007 Decided: December 10, 2007

Before MOTZ, KING, and GREGORY, Circuit Judges.
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No. 07-6513 affirmed; No. 07-7095 dismissed by unpublished per

curiam opinion.

Anthony Chatane White, Appellant Pro Se. Elizabeth Jean Howard,

OFFICE OF THE UNITED STATES ATTORNEY, Greenville, South Carolina,

for Appellee.

Unpublished opinions are not binding precedent in this circuit.
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PER CURIAM:

In these consolidated appeals, Anthony Chatane White

seeks to appeal (1) the district court’s order denying his motion

to extend the time to file a motion under 28 U.S.C. § 2255 (2000),

based upon equitable tolling (No. 07-6513), and (2) the court’s

order denying his § 2255 motion, in which he challenged the amended

criminal judgment (No. 07-7095). With regard to the appeal in No.

07-6513, we find that, because White did not actually file a § 2255

motion challenging the original judgment of conviction, he is not

required to obtain a certificate of appealability to appeal the

district court’s order denying the motion for an extension of time.

See Woodford v. Garceau, 538 U.S. 202, 210 (2003) (holding that “a

case does not become ‘pending’ until an actual application for

habeas corpus relief is filed in federal court”). Thus, we deny

his motion for a certificate of appealability as unnecessary.

Turning to the propriety of the district court’s denial

of White’s motion for an extension of time, the district court

denied the motion on the ground that lack of access to White’s

legal documents did not warrant equitable tolling. We conclude,

however, that the district court lacked jurisdiction to consider

the motion in the first place because White had not filed a § 2255

motion challenging the original judgment of conviction and his

motion did not raise any potential grounds for relief. See United

States v. Leon, 203 F.3d 162, 163-64 (2d Cir. 2000). Accordingly,
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in No. 07-6513, we affirm the district court’s denial of relief on

the alternate ground that the court lacked jurisdiction. See

United States v. Smith, 395 F.3d 516, 518-19 (4th Cir. 2005) (“We

are not limited to evaluation of the grounds offered by the

district court to support its decision, but may affirm on any

grounds apparent from the record.”).

In appeal No. 07-7095, White may not appeal the district

court’s order 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 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 (2003); Slack v. McDaniel, 529 U.S. 473, 484

(2000); Rose v. Lee, 252 F.3d 676, 683-84 (4th Cir. 2001). We have

independently reviewed the record and conclude that White has not

made the requisite showing. Accordingly, we deny a certificate of

appealability and dismiss the appeal in No. 07-7095.
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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.

No. 07-6513 AFFIRMED

No. 07-7095 DISMISSED