UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 09-6152
BRIAN DIGGS,
Petitioner - Appellant,
v.
ROBERT STEVENSON, Warden,
Respondent - Appellee.
Appeal from the United States District Court for the District of
South Carolina, at Beaufort. G. Ross Anderson, Jr., District
Judge. (9:08-cv-00540-GRA)
Submitted: April 16, 2009 Decided: April 23, 2009
Before WILKINSON, GREGORY, and SHEDD, Circuit Judges.
Dismissed by unpublished per curiam opinion.
Brian Diggs, Appellant Pro Se. Melody Jane Brown, Donald John
Zelenka, Assistant United States Attorneys, Columbia, South
Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Brian Diggs 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 (2006) petition and
the district court’s order denying his motion for
reconsideration filed under Fed. R. Civ. P. 59. These orders
are not appealable unless a circuit justice or judge issues a
certificate of appealability. 28 U.S.C. § 2253(c)(1) (2006). 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) (2006). 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 Diggs 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
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before the court and argument would not aid the decisional
process.
DISMISSED
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