UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 10-6955
STEPHEN RAY WESTBERRY,
Petitioner – Appellant,
v.
MICHAEL MCCALL,
Respondent – Appellee.
Appeal from the United States District Court for the District of
South Carolina, at Rock Hill. R. Bryan Harwell, District Judge.
(0:07-cv-03978-RBH)
Submitted: March 3, 2011 Decided: March 21, 2011
Before WILKINSON, NIEMEYER, and GREGORY, Circuit Judges.
Dismissed by unpublished per curiam opinion.
Stephen Ray Westberry, Appellant Pro Se. Donald John Zelenka,
Deputy Assistant Attorney General, James Anthony Mabry,
Assistant Attorney General, Columbia, South Carolina, for
Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Stephen Ray Westberry seeks to appeal the district
court’s orders denying his Fed. R. Civ. P. 60(b) motion for
reconsideration of 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 denying a
certificate of appealability. The orders are not appealable
unless a circuit justice or judge issues a certificate of
appealability. 28 U.S.C. § 2253(c)(1) (2006); Reid v. Angelone,
369 F.3d 363, 369 (4th Cir. 2004). 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). When the district court denies relief on the merits, a
prisoner satisfies this standard by demonstrating that
reasonable jurists would find that the district court’s
assessment of the constitutional claims is debatable or wrong.
Slack v. McDaniel, 529 U.S. 473, 484 (2000); see Miller-El v.
Cockrell, 537 U.S. 322, 336-38 (2003). When the district court
denies relief on procedural grounds, the prisoner must
demonstrate both that the dispositive procedural ruling is
debatable, and that the petition states a debatable claim of the
denial of a constitutional right. Slack, 529 U.S. at 484-85.
We have independently reviewed the record and conclude that
Westberry has not made the requisite showing. Accordingly, we
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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
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