Pate v. Ray

UNPUBLISHED

UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT

No. 05-6173

TODD P. PATE,

Petitioner - Appellant,

versus

TRACY RAY, Warden,

Respondent - Appellee.

Appeal from the United States District Court for the Western
District of Virginia, at Roanoke. Jackson L. Kiser, Senior
District Judge. (CA-04-373)

Submitted: April 28, 2005 Decided: May 6, 2005

Before WILLIAMS, KING, and DUNCAN, Circuit Judges.

Dismissed by unpublished per curiam opinion.

Todd P. Pate, Appellant Pro Se. Stephen R. McCullough, Assistant
Attorney General, Richmond, Virginia, for Appellee.

Unpublished opinions are not binding precedent in this circuit.
See Local Rule 36(c).
PER CURIAM:

Todd P. Pate 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, 683-84 (4th Cir. 2001). We have independently reviewed the

record and conclude that Pate has not made the requisite showing.

Accordingly, we 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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