McClain v. McBride , 161 F. App'x 252 ( 2005 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 05-7213
MARLIN MCCLAIN,
Petitioner - Appellant,
versus
THOMAS L. MCBRIDE, Warden, Mount Olive
Correctional Complex,
Respondent - Appellee.
and
MIKE COLEMAN, Warden,
Respondent.
Appeal from the United States District Court for the Southern
District of West Virginia, at Charleston. John T. Copenhaver, Jr.,
District Judge. (CA-04-1130)
Submitted: December 22, 2005 Decided: December 30, 2005
Before WIDENER, NIEMEYER, and KING, Circuit Judges.
Dismissed by unpublished per curiam opinion.
Marlin McClain, Appellant Pro Se. Darrell V. McGraw, Jr., Dawn
Ellen Warfield, OFFICE OF THE ATTORNEY GENERAL OF WEST VIRGINIA,
Charleston, West Virginia, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
See Local Rule 36(c).
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PER CURIAM:
Marlin McClain 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. This 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 the district
court’s assessment of his constitutional claims is debatable and
that any dispositive procedural findings 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 McClain 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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