Johnny Burnside v. Robert Stevenson

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                            UNPUBLISHED

                   UNITED STATES COURT OF APPEALS
                       FOR THE FOURTH CIRCUIT


                            No. 13-7079


JOHNNY BURNSIDE,

                Petitioner - Appellant,

          v.

ROBERT M. STEVENSON, Warden - BRCI,

                Respondent - Appellee.



Appeal from the United States District Court for the District of
South Carolina, at Beaufort. Joseph F. Anderson, Jr., District
Judge. (9:11-cv-03354-JFA)


Submitted:   November 21, 2013            Decided:   November 25, 2013


Before KING, DUNCAN, and DIAZ, Circuit Judges.


Dismissed by unpublished per curiam opinion.


Johnny Burnside, Appellant Pro Se. Donald John Zelenka, Senior
Assistant   Attorney  General,   Melody  Jane   Brown,  Assistant
Attorney General, Columbia, South Carolina, for Appellee.


Unpublished opinions are not binding precedent in this circuit.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

            Johnny Burnside 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)(A) (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 Burnside has not made the requisite showing.                         Accordingly,

we deny a certificate of appealability and dismiss the appeal.

Burnside’s       motion    for    appointment      of   counsel    is     denied.        We

dispense     with        oral    argument   because       the     facts     and     legal

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contentions   are   adequately   presented   in   the   materials   before

this court and argument would not aid the decisional process.



                                                               DISMISSED




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