Deleston v. State of SC, No. 07-6130 (4th Cir. 2007)

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UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 07-6130 DWAYNE DELESTON, Petitioner - Appellant, versus STATE OF SOUTH CAROLINA; Attorney General, HENRY MCMASTER, Respondents - Appellees. Appeal from the United States District Court for the District of South Carolina, at Greenville. David C. Norton, District Judge. (6:06-cv-00331-DCN) Submitted: July 24, 2007 Decided: July 27, 2007 Before WILKINSON, TRAXLER, and DUNCAN, Circuit Judges. Dismissed by unpublished per curiam opinion. Dwayne Deleston, Appellant Pro Se. Donald John Zelenka, William Edgar Salter, III, OFFICE OF THE ATTORNEY GENERAL OF SOUTH CAROLINA, Columbia, South Carolina, for Appellees. Unpublished opinions are not binding precedent in this circuit. PER CURIAM: Dwayne Deleston 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 (2000) petition. 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. § 2253(c)(2) demonstrating (2000). that A prisoner reasonable satisfies jurists would this 28 U.S.C. standard find that by 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 Deleston 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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