UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 04-6463
BERTRAM NORMAN MCELHINEY,
Petitioner - Appellant,
versus
SID HARKLEROAD,
Respondent - Appellee.
Appeal from the United States District Court for the Western
District of North Carolina, at Charlotte. Graham C. Mullen, Chief
District Judge. (CA-02-325-3-2MU)
Submitted: July 29, 2004 Decided: August 4, 2004
Before LUTTIG, MICHAEL, and DUNCAN, Circuit Judges.
Dismissed by unpublished per curiam opinion.
Bertram Norman McElhiney, Appellant Pro Se. Clarence Joe DelForge,
III, 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Unpublished opinions are not binding precedent in this circuit.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:
Bertram Norman McElhiney seeks to appeal the district
court’s order denying relief on his Fed. R. Civ. P. 60(b) motion
seeking reconsideration of the district court’s order denying as
untimely McElhiney’s petition filed under 28 U.S.C. § 2254 (2000).
An appeal may not be taken from the final order in a § 2254
proceeding 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 his constitutional claims are debatable and
that any dispositive procedural rulings by the district court are
also debatable or wrong. See Miller-El v. Cockrell, 537 U.S. 322,
336 (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 McElhiney has not made the
requisite showing. Accordingly, we deny a certificate of
appealability and dismiss the appeal. McElhiney’s motion to
proceed on appeal in forma pauperis is denied. 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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