Torres v. Lee

UNPUBLISHED

UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT

No. 06-7289

SANTIAGO IBARRA TORRES,

Petitioner - Appellant,

versus

RANDALL LEE, Warden,

Respondent - Appellee.

Appeal from the United States District Court for the Middle
District of North Carolina, at Durham. James A. Beaty, Jr., Chief
District Judge. (1:05-cv-00661-JAB-WW)

Submitted: November 15, 2006 Decided: November 22, 2006

Before WIDENER, WILKINSON, and MOTZ, Circuit Judges.

Dismissed by unpublished per curiam opinion.

Santiago Ibarra Torres, Appellant Pro Se. Mary Carla Hollis, 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Unpublished opinions are not binding precedent in this circuit.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:

Santiago Ibarra Torres seeks to appeal the district

court’s order accepting the recommendation of the magistrate judge

and dismissing as untimely his 28 U.S.C. § 2254 (2000) petition.

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 any

assessment of the constitutional claims by the district court is

debatable or wrong and that any dispositive procedural ruling by

the district court is likewise debatable. 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 Torres has not

made the requisite showing. Accordingly, although we grant Torres’

motion to amend his motion for a certificate of appealability, we

deny his motion for a certificate of appealability, deny leave to

proceed in forma pauperis, 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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