Will Cater, Jr. v. Gene Johnson, No. 08-7742 (4th Cir. 2008)

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UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 08-7742 WILL CATER, JR., Petitioner - Appellant, v. GENE M. JOHNSON, Respondent - Appellee. Appeal from the United States District Court for the Eastern District of Virginia, at Norfolk. Raymond A. Jackson, District Judge. (2:07-cv-00502-RAJ-JEB) Submitted: December 16, 2008 Decided: December 24, 2008 Before WILKINSON, MICHAEL, and KING, Circuit Judges. Dismissed by unpublished per curiam opinion. Will Cater, Jr., Appellant Pro Se. Donald Eldridge Jeffrey, III, Assistant Attorney General, Richmond, Virginia, for Appellee. Unpublished opinions are not binding precedent in this circuit. PER CURIAM: Will Cater, Jr., seeks to appeal the district court s order accepting the recommendation of the magistrate judge and dismissing his 28 U.S.C. § 2254 (2000) petition as untimely and procedurally barred. 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 prisoner reasonable right. satisfies jurists constitutional 28 this by § 2253(c)(2) standard would claims U.S.C. find the by that district (2000). demonstrating any assessment court is A that of debatable the 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 Cater has not made the requisite showing. Accordingly, we deny Cater s motion for a certificate of appealability, deny leave to proceed in forma pauperis, and dismiss the appeal. oral argument adequately because presented in the the facts and materials We dispense with legal before contentions the court are and argument would not aid the decisional process. DISMISSED 2

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