Allen v. Smith , 112 F. App'x 930 ( 2004 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 04-6587
DANIEL ALLEN, SR.,
Petitioner - Appellant,
versus
RAYMOND SMITH, Superintendent,
Respondent - Appellee,
and
THEODIS BECK, Secretary of North Carolina
Corrections,
Respondent.
Appeal from the United States District Court for the Eastern
District of North Carolina, at Raleigh. Terrence W. Boyle, Chief
District Judge. (CA-03-503-5-BO)
Submitted: October 18, 2004 Decided: November 18, 2004
Before MICHAEL, TRAXLER, and GREGORY, Circuit Judges.
Dismissed by unpublished per curiam opinion.
Daniel Allen, Sr., Appellant Pro Se. Clarence Joe DelForge, III,
NORTH CAROLINA DEPARTMENT OF JUSTICE, Raleigh, North Carolina, for
Appellee.
Unpublished opinions are not binding precedent in this circuit.
See Local Rule 36(c).
PER CURIAM:
Daniel Allen, Sr., seeks to appeal the district court’s
order dismissing as untimely his 28 U.S.C. § 2254 (2000) petition.
An appeal may not be taken from the final order in a habeas corpus
proceeding 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 his constitutional claims are debatable and
that any dispositive procedural rulings by the district court are
also debatable or wrong. See Miller-El v. Cockrell, 537 U.S. 322,
336 (2003); Slack v. McDaniel, 529 U.S. 473, 484 (2000); Rose v.
Lee, 252 F.3d 676, 683 (4th Cir. 2001).
By failing to challenge in his informal brief the
district court’s finding regarding timeliness, Allen has waived his
right to challenge the district court’s dismissal of his § 2254
petition as untimely. 4th Cir. R. 34(b). Moreover, our
independent review of the record reflects that his petition was
indeed untimely. 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