Michael Tyran Marshall v. JOE SMITH, Warden

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 05-6062
MICHAEL TYRAN MARSHALL,
Petitioner - Appellant,
versus
JOE SMITH, Warden,
Respondent - Appellee.
Appeal from the United States District Court for the Eastern
District of Virginia, at Richmond. David G. Lowe, Magistrate
Judge. (CA-04-112)
Submitted: April 14, 2005 Decided: April 20, 2005
Before WILKINSON, NIEMEYER, and MICHAEL, Circuit Judges.
Dismissed by unpublished per curiam opinion.
Michael Tyran Marshall, Appellant Pro Se. Deana A. Malek, OFFICE
OF THE ATTORNEY GENERAL OF VIRGINIA, Richmond, Virginia, for
Appellee.
Unpublished opinions are not binding precedent in this circuit.
See Local Rule 36(c).

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1 Because the petition was untimely, we do not address the
other reasons for dismissal discussed in the district court’s
opinion.
2Marshall consented to the jurisdiction of the magistrate
judge to enter a final order in this case. See U.S.C. § 636(c)
(2000); Fed. R. Civ. P. 73.
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PER CURIAM:
Michael Tyran Marshall seeks to appeal the magistrate
judge’s order dismissing as untimely his petition filed under 28
U.S.C. § 2254 (2000),1 and denying his objections to the magistrate
judge’s dismissal order. 2 The orders are 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 his constitutional claims are debatable and that
any dispositive procedural rulings by the district court are also
debatable or wrong. 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 Marshall 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

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presented in the materials before the court and argument would not
aid the decisional process.
DISMISSED

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