Colburn v. Harkleroad

UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 04-6557 MARK A. COLBURN, Petitioner - Appellant, versus SIDNEY HARKLEROAD, Superintendant; THEODIS BECK, Secretary of Corrections, Respondents - Appellees. Appeal from the United States District Court for the Western District of North Carolina, at Bryson City. Graham C. Mullen, Chief District Judge. (CA-04-29-2-MU) Submitted: September 16, 2004 Decided: September 21, 2004 Before LUTTIG, KING, and DUNCAN, Circuit Judges. Dismissed by unpublished per curiam opinion. Mark A. Colburn, Appellant Pro Se. Unpublished opinions are not binding precedent in this circuit. See Local Rule 36(c). PER CURIAM: Mark A. Colburn seeks to appeal from the district court’s order dismissing as untimely his 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, 336-38 (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 Colburn has not made the requisite showing. Accordingly, although we grant Colburn’s motion to file an addendum to his brief, we deny his motion for appointment of counsel, 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 -