Hutto v. Maynard ( 2005 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 04-7998
TERRY L. HUTTO,
Petitioner - Appellant,
versus
GARY MAYNARD, Director; SOUTH CAROLINA
DEPARTMENT OF CORRECTIONS; HENRY MCMASTER,
Attorney General of the State of South
Carolina,
Respondents - Appellees.
Appeal from the United States District Court for the District of
South Carolina, at Beaufort. David C. Norton, District Judge.
(CA-04-108)
Submitted: July 29, 2005 Decided: August 18, 2005
Before LUTTIG, MOTZ, and SHEDD, Circuit Judges.
Affirmed in part; dismissed in part by unpublished per curiam
opinion.
Terry L. Hutto, Appellant Pro Se. Donald John Zelenka, Chief
Deputy Attorney General, John William McIntosh, Assistant Attorney
General, Columbia, South Carolina, for Appellees.
Unpublished opinions are not binding precedent in this circuit.
See Local Rule 36(c).
PER CURIAM:
Terry L. Hutto appeals the district court’s order
accepting the recommendation of the magistrate judge and denying
his 28 U.S.C. § 2254 (2000) petition as untimely under the
Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”).
The district court granted a certificate of appealability
with respect to Hutto’s claim that the district court erred in
finding Hutto’s § 2254 petition untimely. We have reviewed the
record and find that the district court correctly concluded that
Hutto’s petition was untimely filed. Accordingly, we affirm the
district court’s findings on this issue. See Hutto v. Maynard, No.
CA-04-108 (D.S.C. Nov. 23, 2004).
The district court declined to issue a certificate of
appealability on Hutto’s remaining claims. Hutto seeks to expand
the certificate of appealability as to the claims rejected by the
district court. In his motion to expand, Hutto reargues the claims
he sought to raise in his untimely § 2254 petition. Hutto cannot
obtain a certificate of appealability as to these claims 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 his
constitutional claims are debatable and that any dispositive
procedural rulings by the district court are also debatable or
wrong. See Miller-El v. Cockrell, 537 U.S. 322, 336-38 (2003);
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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 Hutto has not made the requisite showing.
Accordingly, we deny Hutto’s motion to expand the certificate of
appealability as to his remaining claims and dismiss the appeal as
to these claims.
We grant leave to proceed in forma pauperis, and deny
Hutto’s motion for appointment of counsel. 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.
AFFIRMED IN PART;
DISMISSED IN PART
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