Billy Lisenby, Jr. v. Cecilia Reynolds , 548 F. App'x 901 ( 2013 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 13-7317
BILLY LEE LISENBY, JR., a/k/a Malik Al-Shabazz,
Petitioner - Appellant,
v.
CECILIA REYNOLDS, Warden KCI,
Respondent - Appellee.
Appeal from the United States District Court for the District of
South Carolina, at Orangeburg. David C. Norton, District Judge.
(5:12-cv-02666-DCN)
Submitted: December 17, 2013 Decided: December 20, 2013
Before KING, GREGORY, and WYNN, Circuit Judges.
Dismissed by unpublished per curiam opinion.
Billy Lee Lisenby, Jr., Appellant Pro Se. Donald John Zelenka,
Senior Assistant Attorney General, James Anthony Mabry,
Assistant Attorney General, Columbia, South Carolina, for
Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Billy Lee Lisenby, Jr., seeks to appeal the district
court’s order accepting the recommendation of the magistrate
judge and dismissing Lisenby’s 28 U.S.C. § 2254 (2006) petition
as untimely filed. The order is not appealable unless a circuit
justice or judge issues a certificate of appealability. 28
U.S.C. § 2253(c)(1)(A) (2006). 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) (2006). When the
district court denies relief on the merits, a prisoner satisfies
this standard by demonstrating that reasonable jurists would
find that the district court’s assessment of the constitutional
claims is debatable or wrong. Slack v. McDaniel, 529 U.S. 473,
484 (2000); see Miller-El v. Cockrell, 537 U.S. 322, 336-38
(2003). When the district court denies relief on procedural
grounds, the prisoner must demonstrate both that the dispositive
procedural ruling is debatable, and that the petition states a
debatable claim of the denial of a constitutional right. Slack,
529 U.S. at 484-85.
We have independently reviewed the record and conclude
that Lisenby has not made the requisite showing. Accordingly,
we deny Lisenby’s motion for a certificate of appealability and
dismiss the appeal. We further deny Lisenby’s motion for
appointment of counsel. We dispense with oral argument because
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the facts and legal contentions are adequately presented in the
materials before this court and argument would not aid the
decisional process.
DISMISSED
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