Robinson v. McKie

UNPUBLISHED

UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT

No. 10-7324

JAMES ROBINSON,

Petitioner - Appellant,

BERNARD MCKIE, Warden,

Respondent - Appellee.

Appeal from the United States District Court for the District of
South Carolina, at Aiken. Henry F. Floyd, District Judge.
(1:09-cv-01757-HFF)

Submitted: March 15, 2011 Decided: March 25, 2011

Before DUNCAN and DAVIS, Circuit Judges, and HAMILTON, Senior
Circuit Judge.

Dismissed by unpublished per curiam opinion.

James Robinson, Appellant Pro Se. Samuel Creighton Waters,
Assistant Attorney General, Columbia, South Carolina, for
Appellee.

Unpublished opinions are not binding precedent in this circuit.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

James Robinson 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). 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 Robinson 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

2
before the court and argument would not aid the decisional

process.

DISMISSED