Ervin v. Rushton , 193 F. App'x 192 ( 2006 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 06-6289
WILLIE ERVIN,
Petitioner - Appellant,
versus
COLIE RUSHTON, Warden; HENRY MCMASTER,
Attorney General for South Carolina,
Respondents - Appellees.
Appeal from the United States District Court for the District of
South Carolina, at Greenville. G. Ross Anderson, Jr., District
Judge. (6:04-cv-23176-GRA)
Submitted: July 25, 2006 Decided: August 1, 2006
Before WILLIAMS, MOTZ, and TRAXLER, Circuit Judges.
Dismissed by unpublished per curiam opinion.
Willie Ervin, Appellant Pro Se. Samuel Creighton Waters, 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Unpublished opinions are not binding precedent in this circuit.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:
Willie Ervin seeks to appeal the district court’s order
accepting the recommendation of the magistrate judge and dismissing
as untimely his 28 U.S.C. § 2254 (2000) petition. 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 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); Rose v. Lee, 252 F.3d
676, 683-84 (4th Cir. 2001). We have independently reviewed the
record and conclude that Ervin 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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