Kessler v. Boyette

                              UNPUBLISHED

                   UNITED STATES COURT OF APPEALS
                       FOR THE FOURTH CIRCUIT


                              No. 04-7113



RUSSELL BRENT KESSLER, JR.,

                                             Petitioner - Appellant,

          versus


BONNIE    BOYETTE,    Superintendent,       Nash
Correctional Institution,

                                              Respondent - Appellee.


Appeal from the United States District       Court for the Middle
District of North Carolina, at Durham.        James A. Beaty, Jr.,
District Judge. (CA-03-1115)


Submitted:   September 1, 2004         Decided:    September 15, 2004


Before LUTTIG, MICHAEL, and MOTZ, Circuit Judges.


Dismissed by unpublished per curiam opinion.


Russell Brent Kessler, Jr., 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Unpublished opinions are not binding precedent in this circuit.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:

          Russell Brent Kessler, Jr., seeks to appeal the district

court’s order granting the Government’s motion to dismiss Kessler’s

28 U.S.C. § 2254 (2000) petition as time-barred.     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 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 Kessler has not made the

requisite showing.   Accordingly, we deny Kessler’s motion for 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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