Kisner v. Fox

UNPUBLISHED

UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT

No. 09-7421

ELMER A. KISNER, JR.,

Petitioner – Appellant,

v.

WARDEN, SMCC WILLIAM FOX; STATE OF WEST VIRGINIA,

Respondents – Appellees.

Appeal from the United States District Court for the Northern
District of West Virginia, at Martinsburg. John Preston Bailey,
Chief District Judge. (3:08-cv-00138-JPB-JSK)

Submitted: January 14, 2010 Decided: January 21, 2010

Before MOTZ, GREGORY, and SHEDD, Circuit Judges.

Dismissed by unpublished per curiam opinion.

Elmer A. Kisner, Jr., Appellant Pro Se. Dawn Ellen Warfield,
Deputy Attorney General, Charleston, West Virginia, for
Appellees.

Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:

Elmer A. Kisner, 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 Kisner 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 before the

court and argument would not aid the decisional process.

DISMISSED

2