Evans v. Hinkle

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 09-6603
ERIC MCDONALD EVANS,
Petitioner - Appellant,
v.
GEORGE M. HINKLE,
Respondent - Appellee.
Appeal from the United States District Court for the Eastern
District of Virginia, at Richmond. M. Hannah Lauck, Magistrate
Judge. (3:08-cv-00307-MHL)
Submitted: August 26, 2009 Decided: September 2, 2009
Before TRAXLER, Chief Judge, and GREGORY and SHEDD, Circuit
Judges.
Dismissed by unpublished per curiam opinion.
Eric McDonald Evans, Appellant Pro Se. Josephine Frances
Whalen, Assistant Attorney General, Richmond, Virginia, for
Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Eric McDonald Evans seeks to appeal the magistrate
judge’s order ∗ dismissing as untimely his 28 U.S.C. § 2254 (2006)
petition. The order is not appealable unless a circuit justice
or judge issues a certificate of appealability. 28 U.S.C.
§ 2253(c)(1) (2006). 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) (2006). 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 Evans 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
∗
The parties consented to the magistrate judge’s
jurisdiction under 28 U.S.C. § 636(c) (2006).
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