Johnny Burnside v. Robert Stevenson , 546 F. App'x 326 ( 2013 )

UNPUBLISHED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Dismissed by unpublished per curiam opinion.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Unpublished opinions are not binding precedent in this circuit.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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