McClurkin v. Stevenson ( 2010 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 09-7199
FATE T. MCCLURKIN,
Petitioner - Appellant,
v.
ROBERT STEVENSON, Warden, Broad River Correctional
Institution,
Respondent - Appellee.
Appeal from the United States District Court for the District of
South Carolina, at Rock Hill. Terry L. Wooten, District Judge.
(0:08-cv-00106-TLW)
Submitted: March 2, 2010 Decided: March 11, 2010
Before WILKINSON, DUNCAN, and AGEE, Circuit Judges.
Dismissed by unpublished per curiam opinion.
Fate T. McClurkin, Appellant Pro Se. Donald John Zelenka, Deputy
Assistant Attorney General, Columbia, South Carolina, for
Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Fate T. McClurkin seeks to appeal the district court’s
orders accepting the recommendation of the magistrate judge and
dismissing his petition under 28 U.S.C. § 2254 (2006), and
denying his motion for reconsideration. Our review discloses
that McClurkin’s appeal of the order dismissing the § 2254
petition is untimely. The order was entered on the docket on
March 23, 2009, and his notice of appeal was dated June 16,
2009. See Houston v. Lack, 487 U.S. 266 (1988). We accordingly
dismiss the appeal of that order for lack of jurisdiction. See
Fed. R. App. P. 4(a)(1)(A).
The district court’s order denying McClurkin’s motion
pursuant to Fed. R. Civ. P. 60(b) is not appealable unless a
circuit justice or judge issues a certificate of appealability.
28 U.S.C. § 2253(c)(1) (2006); Reid v. Angelone, 369 F.3d 363,
369 (4th Cir. 2004). 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);
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Rose v. Lee, 252 F.3d 676, 683-84 (4th Cir. 2001). We have
independently reviewed the record and conclude that McClurkin
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
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