UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 04-7952
VAN PRINCE WELCH,
Petitioner - Appellant,
versus
GENE JOHNSON,
Respondent - Appellee.
Appeal from the United States District Court for the Eastern
District of Virginia, at Norfolk. Henry Coke Morgan, Jr., Senior
District Judge. (CA-04-423)
Submitted: April 29, 2005 Decided: May 16, 2005
Before NIEMEYER, WILLIAMS, and TRAXLER, Circuit Judges.
Dismissed by unpublished per curiam opinion.
Van Prince Welch, Appellant Pro Se. Richard Carson Vorhis, OFFICE
OF THE ATTORNEY GENERAL OF VIRGINIA, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
See Local Rule 36(c).
PER CURIAM:
Van Prince Welch seeks to appeal the district court’s
order accepting a magistrate judge’s recommendation to dismiss
Welch’s 28 U.S.C. § 2254 (2000) petition as untimely filed. An
appeal may not be taken from the final order in a habeas corpus
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 (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 Welch 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
*
We find that Welch has waived appellate review of his claim
that his petition should have been construed under 28 U.S.C. § 2241
(2000) by failing to lodge that specific objection to the
magistrate judge’s recommendation after receiving proper notice of
the consequences of the failure to object. See Wright v. Collins,
766 F.2d 841, 845-46 (4th Cir. 1985); see also Thomas v. Arn, 474
U.S. 140, 155 (1985).
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presented in the materials before the court and argument would not
aid the decisional process.
DISMISSED
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