Kisner v. Fox ( 2010 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 09-7421
ELMER A. KISNER, JR.,
Petitioner – Appellant,
v.
WARDEN, SMCC WILLIAM FOX; STATE OF WEST VIRGINIA,
Respondents – Appellees.
Appeal from the United States District Court for the Northern
District of West Virginia, at Martinsburg. John Preston Bailey,
Chief District Judge. (3:08-cv-00138-JPB-JSK)
Submitted: January 14, 2010 Decided: January 21, 2010
Before MOTZ, GREGORY, and SHEDD, Circuit Judges.
Dismissed by unpublished per curiam opinion.
Elmer A. Kisner, Jr., Appellant Pro Se. Dawn Ellen Warfield,
Deputy Attorney General, Charleston, West Virginia, for
Appellees.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Elmer A. Kisner, Jr. 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 (2006)
petition. The order is not appealable unless a circuit justice
or judge issues a certificate of appealability. 28 U.S.C.
§ 2253(c)(1) (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). 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 Kisner 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
2