Corbitt v. Bennett , 258 F. App'x 555 ( 2007 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 07-7190
DEMARCUS CORBITT,
Petitioner - Appellant,
versus
BOYD BENNETT,
Respondent - Appellee.
Appeal from the United States District Court for the Middle
District of North Carolina, at Durham. N. Carlton Tilley, Jr.,
District Judge. (1:06-cv-00829-NCT)
Submitted: December 13, 2007 Decided: December 20, 2007
Before NIEMEYER, MOTZ, and SHEDD, Circuit Judges.
Dismissed by unpublished per curiam opinion.
Demarcus Corbitt, Appellant Pro Se. Clarence Joe DelForge, III,
NORTH CAROLINA DEPARTMENT OF JUSTICE, Raleigh, North Carolina, for
Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Demarcus Corbitt 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 Corbitt has not
made the requisite showing. Accordingly, we deny a certificate of
appealability, deny Corbitt’s motion for leave to proceed in forma
pauperis, 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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