Miller v. Holt ( 2006 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 05-7348
ARCHIE LEWIS MILLER,
Petitioner - Appellant,
versus
CLINTON HOLT; TERRY L. HARVELL,
Respondents - Appellees.
Appeal from the United States District Court for the Middle
District of North Carolina, at Durham. James A. Beaty, Jr.,
District Judge. (CA-05-30-1)
Submitted: February 23, 2006 Decided: March 2, 2006
Before WIDENER, NIEMEYER, and KING, Circuit Judges.
Dismissed by unpublished per curiam opinion.
Archie Lewis Miller, 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Unpublished opinions are not binding precedent in this circuit.
See Local Rule 36(c).
PER CURIAM:
Archie Lewis Miller seeks to appeal the district court’s
order adopting the magistrate judge’s report and recommendation and
dismissing as untimely his petition filed under 28 U.S.C. § 2254(2000). 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
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);
Slack v. McDaniel, 529 U.S. 473, 484 (2000); Rose v. Lee, 252 F.3d
676, 683 (4th Cir. 2001). We have independently reviewed the
record and conclude that Miller has not made the requisite showing.
Accordingly, we deny leave to proceed in forma pauperis, 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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