Plummer v. Warden, Wallens Ridge State Prison , 114 F. App'x 110 ( 2004 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 04-6736
LARRY D. BURNS,
Petitioner - Appellant,
versus
WARDEN, Manning Correctional Institution;
STATE OF SOUTH CAROLINA; HENRY D. MCMASTER,
Respondents - Appellees.
Appeal from the United States District Court for the District of
South Carolina, at Anderson. G. Ross Anderson, Jr., District
Judge. (CA-03-2948-8-13BH)
Submitted: November 18, 2004 Decided: December 16, 2004
Before LUTTIG and GREGORY, Circuit Judges, and HAMILTON, Senior
Circuit Judge.
Dismissed by unpublished per curiam opinion.
Larry D. Burns, Appellant Pro Se. Melody Jane Brown, OFFICE OF THE
ATTORNEY GENERAL OF SOUTH CAROLINA, Columbia, South Carolina, for
Appellees.
Unpublished opinions are not binding precedent in this circuit.
See Local Rule 36(c).
PER CURIAM:
Larry D. Burns appeals from the dismissal of his 28
U.S.C. § 2254 (2000) petition as untimely filed. An appeal may not
be taken from the final order in a § 2254 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 jurists of reason
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).
We have reviewed the record and conclude that Burns has
not made the requisite showing. We therefore deny Burns’ motions
to proceed in forma pauperis and for appointment of counsel, 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 -