Cater v. Johnson , 304 F. App'x 189 ( 2008 )


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  •                               UNPUBLISHED
    UNITED STATES COURT OF APPEALS
    FOR THE FOURTH CIRCUIT
    No. 08-7742
    WILL CATER, JR.,
    Petitioner - Appellant,
    v.
    GENE M. JOHNSON,
    Respondent - Appellee.
    Appeal from the United States District Court for the Eastern
    District of Virginia, at Norfolk. Raymond A. Jackson, District
    Judge. (2:07-cv-00502-RAJ-JEB)
    Submitted:    December 16, 2008             Decided:   December 24, 2008
    Before WILKINSON, MICHAEL, and KING, Circuit Judges.
    Dismissed by unpublished per curiam opinion.
    Will Cater, Jr., Appellant Pro Se. Donald Eldridge Jeffrey, III,
    Assistant Attorney General, Richmond, Virginia, for Appellee.
    Unpublished opinions are not binding precedent in this circuit.
    PER CURIAM:
    Will Cater, Jr., seeks to appeal the district court’s
    order accepting the recommendation of the magistrate judge and
    dismissing his 
    28 U.S.C. § 2254
     (2000) petition as untimely and
    procedurally      barred.     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 Cater has
    not made the requisite showing.                   Accordingly, we deny Cater’s
    motion for a certificate of appealability, deny leave to proceed
    in forma pauperis, 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
    2
    

Document Info

Docket Number: 08-7742

Citation Numbers: 304 F. App'x 189

Judges: Wilkinson, Michael, King

Filed Date: 12/24/2008

Precedential Status: Non-Precedential

Modified Date: 11/5/2024