Updike v. Johnson , 303 F. App'x 152 ( 2008 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 08-7269
STEVEN LEE UPDIKE,
Petitioner – Appellant,
v.
GENE M. JOHNSON, Director, Virginia Department of
Corrections; ROBERT FRANCIS MCDONNELL, Attorney General of
the State of Virginia,
Respondents – Appellees.
Appeal from the United States District Court for the Eastern
District of Virginia, at Alexandria. Liam O’Grady, District
Judge. (1:08-cv-00325-LO-JFA)
Submitted: December 5, 2008 Decided: December 16, 2008
Before TRAXLER and MOTZ, Circuit Judges, and HAMILTON, Senior
Circuit Judge.
Dismissed by unpublished per curiam opinion.
Steven Lee Updike, Appellant Pro Se.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Steven Lee Updike seeks to appeal the district court’s
order dismissing as untimely his 28 U.S.C. § 2254 (2000)
petition. The order is not appealable 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 Updike 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.
DISMISSED
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