Benjamin Hilliard v. Theodis Beck

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 08-8394
BENJAMIN HILLIARD,
Petitioner - Appellant,
v.
THEODIS BECK,
Respondent - Appellee.
Appeal from the United States District Court for the Eastern
District of North Carolina, at Raleigh. James C. Dever III,
District Judge. (5:07-hc-02181-D)
Submitted: April 16, 2009 Decided: April 24, 2009
Before WILKINSON, NIEMEYER, and SHEDD, Circuit Judges.
Dismissed by unpublished per curiam opinion.
Benjamin Hilliard, Appellant Pro Se. Clarence Joe DelForge,
III, Assistant Attorney General, Raleigh, North Carolina, for
Appellee.
Unpublished opinions are not binding precedent in this circuit.

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PER CURIAM:
Benjamin Hilliard seeks to appeal the district court’s
orders denying relief on his 28 U.S.C. § 2254 (2006) petition,
and denying his motion for reconsideration, which the district
court construed pursuant to Fed. R. Civ. P. 60(b).* The orders
are not appealable unless a circuit justice or judge issues a
certificate of appealability. See 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. See 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 Hilliard has not made the requisite showing.
Accordingly, we deny a certificate of appealability and dismiss
* Hilliard claims he placed his motion in the institutional
mail within ten days. See Houston v. Lack, 487 U.S. 266 (1988).
Even if the motion had been construed pursuant to Rule 59(e), we
find no abuse of the district court's discretion in its denial
of the motion. See Temkin v. Frederick County Comm'rs, 945 F.2d
716, 724 (4th Cir. 1991).
2

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3
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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