Plummer v. Warden, Wallens Ridge State Prison

                            UNPUBLISHED

                   UNITED STATES COURT OF APPEALS
                       FOR THE FOURTH CIRCUIT


                            No. 04-6736



LARRY D. BURNS,

                                           Petitioner - Appellant,

          versus


WARDEN, Manning Correctional Institution;
STATE OF SOUTH CAROLINA; HENRY D. MCMASTER,

                                          Respondents - Appellees.



Appeal from the United States District Court for the District of
South Carolina, at Anderson.    G. Ross Anderson, Jr., District
Judge. (CA-03-2948-8-13BH)


Submitted:   November 18, 2004         Decided:     December 16, 2004


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


Dismissed by unpublished per curiam opinion.


Larry D. Burns, Appellant Pro Se. Melody Jane Brown, 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Unpublished opinions are not binding precedent in this circuit.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:

              Larry D. Burns appeals from the dismissal of his 28

U.S.C. § 2254 (2000) petition as untimely filed.           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 jurists of reason

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 reviewed the record and conclude that Burns has

not made the requisite showing.        We therefore deny Burns’ motions

to proceed in forma pauperis and 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




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