Grate v. Ozmint , 280 F. App'x 248 ( 2008 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 08-6424
DEWAYNE GRATE,
Petitioner - Appellant,
v.
JON OZMINT, Director of SCDC; ANTHONY PADULA, Warden, Lee CI,
Respondents - Appellees.
Appeal from the United States District Court for the District of
South Carolina, at Columbia. Margaret B. Seymour, District Judge.
(3:07-cv-01034-MBS)
Submitted: May 22, 2008 Decided: June 2, 2008
Before MOTZ and DUNCAN, Circuit Judges, and HAMILTON, Senior
Circuit Judge.
Dismissed by unpublished per curiam opinion.
Dewayne Grate, Appellant Pro Se. Donald John Zelenka, SOUTH
CAROLINA ATTORNEY GENERAL’S OFFICE, Columbia, South Carolina;
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Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Dewayne Grate 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. See 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. 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 Grate
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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