Rogers v. Sutton

UNPUBLISHED

UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT

No. 04-7188

MATTHEW JAMES ROGERS,

Petitioner - Appellant,

versus

ERNEST R. SUTTON, Superintendent,

Respondent - Appellee.

Appeal from the United States District Court for the Eastern
District of North Carolina, at Raleigh. Louise W. Flanagan, Chief
District Judge. (CA-04-41-5-HC-FL)

Submitted: November 18, 2004 Decided: November 29, 2004

Before LUTTIG and GREGORY, Circuit Judges, and HAMILTON, Senior
Circuit Judge.

Dismissed by unpublished per curiam opinion.

Matthew James Rogers, 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Unpublished opinions are not binding precedent in this circuit.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:

Matthew James Rogers, a state prisoner, seeks to appeal

the district court’s order denying as untimely his petition filed

under 28 U.S.C. § 2254 (2000). 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,

336-38 (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 Rogers has not made the

requisite showing. Accordingly, we deny a certificate of

appealability and dismiss the appeal. We deny Rogers’ motion for

appointment of counsel and 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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