Clayton Benjamin, Jr. v. Anthony Padula, No. 09-6136 (4th Cir. 2009)

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UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 09-6136 CLAYTON BENJAMIN, JR., a/k/a Clayton Benjamin, Petitioner - Appellant, v. ANTHONY J. PADULA, Warden, Lee Correctional Institution, Respondent - Appellee. Appeal from the United States District Court for the District of South Carolina, at Anderson. Terry L. Wooten, District Judge. (8:07-cv-04019-TLW) Submitted: July 30, 2009 Decided: August 4, 2009 Before MOTZ, KING, and DUNCAN, Circuit Judges. Dismissed by unpublished per curiam opinion. Clayton Benjamin, Jr., Appellant Pro Se. James Anthony Mabry, Assistant Attorney General, Donald John Zelenka, Deputy Assistant Attorney General, Columbia, South Carolina, for Appellee. Unpublished opinions are not binding precedent in this circuit. PER CURIAM: Clayton Benjamin, Jr., 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 (2006) petition. or judge The order is not appealable unless a circuit justice issues a certificate § 2253(c)(1) (2006). issue absent constitutional prisoner a substantial right. jurists constitutional appealability. 28 U.S.C. A certificate of appealability will not satisfies reasonable of 28 U.S.C. this by find the of the denial § 2253(c)(2) standard would claims showing by that assessment court a (2006). demonstrating any district of 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 Benjamin has not made the requisite showing. Accordingly, we deny a certificate of appealability, deny leave to proceed in forma pauperis, motion to and dismiss appoint the counsel appeal. and We dispense also with deny Benjamin s 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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