Velarde v. McCabe

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 06-6581
LUIS ARMANDO VELARDE,
Petitioner - Appellant,
versus
SHERWOOD R. MCCABE,
Respondent - Appellee.
Appeal from the United States District Court for the Middle
District of North Carolina, at Durham. James A. Beaty, Jr.,
District Judge. (1:05-cv-00275-JAB-PT)
Submitted: June 28, 2006 Decided: August 11, 2006
Before NIEMEYER, MICHAEL, and MOTZ, Circuit Judges.
Dismissed by unpublished per curiam opinion.
Luis Armando Velarde, Appellant Pro Se. Clarence Joe DelForge,
III, Mary Carla Hollis, 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Unpublished opinions are not binding precedent in this circuit.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:
Luis Armando Velarde 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. 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 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 Velarde 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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