Bitting v. Beck, No. 07-7224 (4th Cir. 2008)

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UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 07-7224 MARCHELLO ANTONIUS BITTING, Petitioner - Appellant, versus THEODIS BECK, Respondent - Appellee. Appeal from the United States District Court for the Middle District of North Carolina, at Durham. N. Carlton Tilley, Jr., District Judge. (1:07-cv-00279-NCT) Submitted: January 17, 2008 Decided: January 24, 2008 Before TRAXLER, SHEDD, and DUNCAN, Circuit Judges. Dismissed by unpublished per curiam opinion. Marchello Antonius Bitting, Appellant Pro Se. Clarence Joe DelForge, III, NORTH CAROLINA DEPARTMENT OF JUSTICE, Raleigh, North Carolina, for Appellee. Unpublished opinions are not binding precedent in this circuit. PER CURIAM: Marchello Antonius Bitting 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. (2000). 28 U.S.C. § 2253(c)(1) A certificate of appealability will not issue absent a substantial showing of the denial of a constitutional right. U.S.C. § 2253(c)(2) (2000). demonstrating that 28 A prisoner satisfies this standard by 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 Bitting has not made the requisite showing. Accordingly, we deny a certificate of appealability, deny Bitting s motion to proceed in forma pauperis, and dismiss the appeal. We dispense with oral argument because the facts and materials legal before contentions are adequately the and argument court presented would not in the aid the decisional process. DISMISSED - 2 -

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