UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 03-6357
KERRY GARNER,
Petitioner - Appellant,
versus
CALVIN ANTHONY, Warden of Lee Correctional
Institution; CHARLES CONDON, Attorney General
of the State of South Carolina,
Respondents - Appellees.
Appeal from the United States District Court for the District of
South Carolina, at Columbia. Terry L. Wooten, District Judge. (CA-
02-1330-25-BC-3)
Submitted: July 7, 2003 Decided: July 24, 2003
Before MOTZ and GREGORY, Circuit Judges, and HAMILTON, Senior
Circuit Judge.
Dismissed by unpublished per curiam opinion.
Kerry Garner, Appellant Pro Se. William Edgar Salter, III, OFFICE
OF THE ATTORNEY GENERAL OF SOUTH CAROLINA, Columbia, South
Carolina, for Appellees.
Unpublished opinions are not binding precedent in this circuit.
See Local Rule 36(c).
PER CURIAM:
Kerry Garner seeks to appeal the district court’s order
adopting the report and recommendation of a magistrate judge and
dismissing as untimely his 28 U.S.C. § 2254 (2000) petition. An
appeal may not be taken from the final order in a habeas corpus
proceeding unless a circuit justice or judge issues a certificate
of appealability. 28 U.S.C. § 2253(c)(1) (2000). When, as here,
a district court dismisses a § 2254 petition solely on procedural
grounds, a certificate of appealability will not issue unless the
petitioner can demonstrate both “(1) ‘that jurists of reason would
find it debatable whether the petition states a valid claim of the
denial of a constitutional right’ and (2) ‘that jurists of reason
would find it debatable whether the district court was correct in
its procedural ruling.’” Rose v. Lee, 252 F.3d 676, 684 (4th Cir.)
(quoting Slack v. McDaniel, 529 U.S. 473, 484 (2000)), cert.
denied, 534 U.S. 941 (2001). We have independently reviewed the
record and conclude that Garner has not made the requisite showing.
See Miller-El v. Cockrell, 537 U.S. 322 (2003). 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
2