Petty v. Padula , 368 F. App'x 404 ( 2010 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 09-7861
GARY L. PETTY,
Petitioner - Appellant,
v.
ANTHONY J. PADULA, Warden at Lee Correctional Institution,
Respondent - Appellee.
Appeal from the United States District Court for the District of
South Carolina, at Rock Hill. R. Bryan Harwell, District Judge.
(0:08-cv-02967-RBH)
Submitted: February 25, 2010 Decided: March 4, 2010
Before DUNCAN and AGEE, Circuit Judges, and HAMILTON, Senior
Circuit Judge.
Dismissed by unpublished per curiam opinion.
Gary L. Petty, Appellant Pro Se. Donald John Zelenka, Deputy
Assistant Attorney General, William Edgar Salter, III, Assistant
Attorney General, Columbia, South Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Gary L. Petty seeks to appeal the district court’s
order accepting the recommendation of the magistrate judge and
denying 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) (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 Petty 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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