Harvell v. Pinion ( 2006 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 05-7297
BARRY MICHAEL HARVELL,
Petitioner - Appellant,
versus
TODD W. PINION, Superintendent of Piedmont
Correctional Institution,
Respondent - Appellee.
Appeal from the United States District Court for the Middle
District of North Carolina, at Durham. James A. Beaty, Jr.,
District Judge. (CA-04-1007-1)
Submitted: February 23, 2006 Decided: March 1, 2006
Before WIDENER, NIEMEYER, and KING, Circuit Judges.
Dismissed by unpublished per curiam opinion.
Bruce Tracy Cunningham, Jr., THE LAW OFFICE OF BRUCE T. CUNNINGHAM,
JR., Southern Pines, North Carolina, for Appellant. 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Unpublished opinions are not binding precedent in this circuit.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:
Barry Michael Harvell seeks to appeal from the district
court’s order adopting the recommendation of the magistrate judge
and denying as untimely his petition filed under 28 U.S.C. § 2254(2000). 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
the district court’s assessment of his constitutional claims is
debatable or wrong and that any dispositive procedural rulings by
the district court are also debatable or wrong. See Miller-El v.
Cockrell, 537 U.S. 322, 336-38 (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 Harvell
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 -