Billy Austin v. Gene M. Johnson

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 09-6290
BILLY AUSTIN,
Plaintiff - Appellant,
v.
GENE M. JOHNSON,
Defendant - Appellee.
Appeal from the United States District Court for the Eastern
District of Virginia, at Norfolk. Rebecca Beach Smith, District
Judge. (2:08-cv-00135-RBS-FBS)
Submitted: June 18, 2009 Decided: June 24, 2009
Before NIEMEYER, GREGORY, and DUNCAN, Circuit Judges.
Dismissed by unpublished per curiam opinion.
Billy Austin, Appellant Pro Se. Craig Stallard, Assistant
Attorney General, Richmond, Virginia, for Appellee.
Unpublished opinions are not binding precedent in this circuit.

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PER CURIAM:
Billy Austin seeks to appeal the district court’s
order accepting the recommendation of the magistrate judge and
denying his 28 U.S.C. § 2254 (2006) petition as untimely. 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 Austin 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

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