UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 09-6136
CLAYTON BENJAMIN, JR., a/k/a Clayton Benjamin,
Petitioner - Appellant,
v.
ANTHONY J. PADULA, Warden, Lee Correctional Institution,
Respondent - Appellee.
Appeal from the United States District Court for the District of
South Carolina, at Anderson. Terry L. Wooten, District Judge.
(8:07-cv-04019-TLW)
Submitted: July 30, 2009 Decided: August 4, 2009
Before MOTZ, KING, and DUNCAN, Circuit Judges.
Dismissed by unpublished per curiam opinion.
Clayton Benjamin, Jr., Appellant Pro Se. James Anthony Mabry,
Assistant Attorney General, Donald John Zelenka, Deputy
Assistant Attorney General, Columbia, South Carolina, for
Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Clayton Benjamin, Jr., 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. The order is 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 Benjamin has
not made the requisite showing. Accordingly, we deny a
certificate of appealability, deny leave to proceed in forma
pauperis, and dismiss the appeal. We also deny Benjamin’s
motion to appoint counsel and 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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