Dewayne Grate v. Jon Ozmint, No. 08-6424 (4th Cir. 2008)

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UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 08-6424 DEWAYNE GRATE, Petitioner - Appellant, v. JON OZMINT, Director of SCDC; ANTHONY PADULA, Warden, Lee CI, Respondents - Appellees. Appeal from the United States District Court for the District of South Carolina, at Columbia. Margaret B. Seymour, District Judge. (3:07-cv-01034-MBS) Submitted: May 22, 2008 Decided: June 2, 2008 Before MOTZ and DUNCAN, Circuit Judges, and HAMILTON, Senior Circuit Judge. Dismissed by unpublished per curiam opinion. Dewayne Grate, Appellant Pro Se. Donald John Zelenka, SOUTH CAROLINA ATTORNEY GENERAL S OFFICE, Columbia, South Carolina; Samuel Creighton Waters, OFFICE OF THE ATTORNEY GENERAL OF SOUTH CAROLINA, Columbia, South Carolina, for Appellees. Unpublished opinions are not binding precedent in this circuit. PER CURIAM: Dewayne Grate 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. See 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. See 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 Grate 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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