Will Cater, Jr. v. Gene M. Johnson

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 08-7742
WILL CATER, JR.,
Petitioner - Appellant,
v.
GENE M. JOHNSON,
Respondent - Appellee.
Appeal from the United States District Court for the Eastern
District of Virginia, at Norfolk. Raymond A. Jackson, District
Judge. (2:07-cv-00502-RAJ-JEB)
Submitted: December 16, 2008 Decided: December 24, 2008
Before WILKINSON, MICHAEL, and KING, Circuit Judges.
Dismissed by unpublished per curiam opinion.
Will Cater, Jr., Appellant Pro Se. Donald Eldridge Jeffrey, III,
Assistant Attorney General, Richmond, Virginia, for Appellee.
Unpublished opinions are not binding precedent in this circuit.

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PER CURIAM:
Will Cater, Jr., seeks to appeal the district court’s
order accepting the recommendation of the magistrate judge and
dismissing his 28 U.S.C. § 2254 (2000) petition as untimely and
procedurally barred. The order is not appealable unless a
circuit justice or judge issues a certificate of appealability.
28 U.S.C. § 2253(c)(1) (2000). 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) (2000). 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 Cater has
not made the requisite showing. Accordingly, we deny Cater’s
motion for a certificate of appealability, deny leave to proceed
in forma pauperis, 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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