UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 05-6456
EDUARDO AMBARIO BARRERA,
Petitioner - Appellant,
versus
SHERWOOD R. MCCABE,
Respondent - Appellee.
Appeal from the United States District Court for the Eastern
District of North Carolina, at Raleigh. Terrence W. Boyle,
District Judge. (CA-05-97-5)
Submitted: August 26, 2005 Decided: September 8, 2005
Before WILLIAMS and MOTZ, Circuit Judges, and HAMILTON, Senior
Circuit Judge.
Dismissed by unpublished per curiam opinion.
Eduardo Ambario Barrera, Appellant Pro Se. Lisa Harper Graham,
Assistant Attorney General, 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Unpublished opinions are not binding precedent in this circuit.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:
Eduardo Barrera seeks to appeal 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 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 the district
court’s assessment of his constitutional claims is 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 even if the district court
committed a procedural error in dismissing the appeal without
giving Barrera an opportunity to address the potential
applicability of equitable tolling, see Hill v. Braxton, 277 F.3d
701, 706-07 (4th Cir. 2002), Barrera has not made the requisite
showing of the denial of a constitutional right. See Murphy v.
Netherland, 116 F.3d 97, 100 (4th Cir. 1997). Accordingly, we deny
a certificate of appealability and dismiss the appeal. We dispense
with oral argument because the facts and legal contentions are
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adequately presented in the materials before the court and argument
would not aid the decisional process.
DISMISSED
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