Deleston v. South Carolina , 234 F. App'x 169 ( 2007 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 07-6130
DWAYNE DELESTON,
Petitioner - Appellant,
versus
STATE OF SOUTH CAROLINA; HENRY MCMASTER,
Attorney General,
Respondents - Appellees.
Appeal from the United States District Court for the District of
South Carolina, at Greenville. David C. Norton, District Judge.
(6:06-cv-00331-DCN)
Submitted: July 24, 2007 Decided: July 27, 2007
Before WILKINSON, TRAXLER, and DUNCAN, Circuit Judges.
Dismissed by unpublished per curiam opinion.
Dwayne Deleston, Appellant Pro Se. Donald John Zelenka, William
Edgar Salter, III, OFFICE OF THE ATTORNEY GENERAL OF SOUTH
CAROLINA, Columbia, South Carolina, for Appellees.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Dwayne Deleston seeks to appeal the district court’s
order accepting the recommendation of the magistrate judge and
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 Deleston 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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