Simpson v. Warden, Broad River Correctional Institution , 259 F. App'x 571 ( 2007 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 07-6740
JACK SIMPSON, JR.,
Petitioner - Appellant,
versus
WARDEN, BROAD RIVER CORRECTIONAL INSTITUTION,
Respondent - Appellee.
Appeal from the United States District Court for the District of
South Carolina, at Columbia. David C. Norton, District Judge.
(3:06-cv-02629-DCN)
Submitted: December 20, 2007 Decided: December 26, 2007
Before MICHAEL and KING, Circuit Judges, and HAMILTON, Senior
Circuit Judge.
Dismissed by unpublished per curiam opinion.
Jack Simpson, Jr., Appellant Pro Se. Donald John Zelenka, SOUTH
CAROLINA ATTORNEY GENERAL’S OFFICE, Columbia, South Carolina, for
Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Jack Simpson, Jr., seeks to appeal the district court’s
order accepting the recommendation of the magistrate judge and
denying relief on 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 Simpson has not
made the requisite showing. Accordingly, we deny a certificate of
appealability, deny leave to proceed in forma pauperis, and dismiss
the appeal. We dispense with oral argument because the facts and
*
While the district judge appeared to indicate that Simpson
failed to timely file objections to the magistrate judge’s report
and recommendation, we find that Simpson’s objections were timely
filed. See Fed. R. Civ. P. 6(a), (e), 72(a); Houston v. Lack, 487
U.S. 266, 276 (1988). Given that the district court nonetheless
reviewed the record de novo, any error associated with the
timeliness of Simpson’s objections is harmless. See generally,
Orpiano v. Johnson, 687 F.2d 44, 47-48 (4th Cir. 1982).
- 2 -
legal contentions are adequately presented in the materials before
the court and argument would not aid the decisional process.
DISMISSED
- 3 -