Herbin v. Johnson, No. 05-7492 (4th Cir. 2006)

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UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 05-7492 JOSEPH M. HERBIN, Petitioner - Appellant, versus GENE M. JOHNSON, Respondent - Appellee. Appeal from the United States District Court for the Eastern District of Virginia, at Norfolk. Walter D. Kelley, Jr., District Judge. (CA-05-116-2) Submitted: December 22, 2005 Decided: January 4, 2006 Before WIDENER, NIEMEYER, and KING, Circuit Judges. Dismissed by unpublished per curiam opinion. Joseph M. Herbin, Appellant Pro Se. Donald Eldridge Jeffrey, III, 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 Unpublished opinions are not binding precedent in this circuit.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). PER CURIAM: Joseph M. Herbin, a state prisoner, seeks to appeal the district court s order accepting the recommendation of the magistrate judge and dismissing as untimely Herbin s petition filed under 28 U.S.C. § 2254 (2000). 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 constitutional right. showing of the denial 28 U.S.C. § 2253(c)(2) (2000). of a A prisoner satisfies this standard by demonstrating that reasonable jurists would find that constitutional the claims district are court s debatable and assessment that any of his dispositive procedural rulings by the district court are also debatable or wrong. See Miller-El v. Cockrell, 537 U.S. 322, 336 (2003); Slack v. McDaniel, 529 U.S. 473, 484 (2000); Rose v. Lee, 252 F.3d 676, 683 (4th Cir. 2001). We have independently reviewed the record and conclude that Herbin 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 - 2 -

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