Austin v. Hardy , 272 F. App'x 250 ( 2008 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 07-7414
GLEN MONROE AUSTIN,
Petitioner - Appellant,
v.
JAMES HARDY, Superintendent,
Respondent - Appellee.
Appeal from the United States District Court for the Middle
District of North Carolina, at Durham. Wallace W. Dixon,
Magistrate Judge. (1:07-cv-00239-WWD)
Submitted: March 25, 2008 Decided: April 4, 2008
Before WILKINSON, NIEMEYER, and SHEDD, Circuit Judges.
Dismissed by unpublished per curiam opinion.
Glen Monroe Austin, Appellant Pro Se. Clarence Joe DelForge, III,
Assistant Attorney General, Raleigh, North Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Glen Monroe Austin seeks to appeal the magistrate judge’s
order dismissing his 28 U.S.C. § 2254 (2000) petition as untimely.*
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 magistrate judge is
debatable or wrong and that any dispositive procedural ruling by
the magistrate judge 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 Austin 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
*
This case was decided by the magistrate judge upon consent of
the parties under 28 U.S.C. § 636(c) (2000) and Fed. R. Civ. P. 73.
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