McBrayer v. Johnson ( 2010 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 10-6517
RANDALL MCBRAYER,
Petitioner – Appellant,
v.
GENE M. JOHNSON, Director of VDOC,
Respondent – Appellee.
Appeal from the United States District Court for the Eastern
District of Virginia, at Richmond. M. Hannah Lauck, Magistrate
Judge. (3:09-cv-00411-MHL)
Submitted: July 22, 2010 Decided: August 2, 2010
Before NIEMEYER, GREGORY, and SHEDD, Circuit Judges.
Dismissed by unpublished per curiam opinion.
Randall McBrayer, Appellant Pro Se. Leah A. Darron, OFFICE OF
THE ATTORNEY GENERAL OF VIRGINIA, Richmond, Virginia, for
Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Randall McBrayer seeks to appeal the magistrate
judge’s order 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). 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 McBrayer 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
*
The parties consented to the exercise of jurisdiction by
the magistrate judge pursuant to 28 U.S.C. § 636(c) (2006).
2
and legal contentions are adequately presented in the materials
before the court and argument would not aid the decisional
process.
DISMISSED
3