Fate McClurkin v. Robert Stevenson, No. 09-7199 (4th Cir. 2010)
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UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 09-7199 FATE T. MCCLURKIN, Petitioner - Appellant, v. ROBERT STEVENSON, Institution, Warden, Broad River Correctional Respondent - Appellee. Appeal from the United States District Court for the District of South Carolina, at Rock Hill. Terry L. Wooten, District Judge. (0:08-cv-00106-TLW) Submitted: March 2, 2010 Decided: March 11, 2010 Before WILKINSON, DUNCAN, and AGEE, Circuit Judges. Dismissed by unpublished per curiam opinion. Fate T. McClurkin, Appellant Pro Se. Donald John Zelenka, Deputy Assistant Attorney General, Columbia, South Carolina, for Appellee. Unpublished opinions are not binding precedent in this circuit. PER CURIAM: Fate T. McClurkin seeks to appeal the district court s orders accepting the recommendation of the magistrate judge and dismissing his petition under 28 U.S.C. denying his motion for reconsideration. that McClurkin s appeal petition is untimely. of the order § 2254 (2006), and Our review discloses dismissing the § 2254 The order was entered on the docket on March 23, 2009, and his notice of appeal was dated June 16, 2009. See Houston v. Lack, 487 U.S. 266 (1988). We accordingly dismiss the appeal of that order for lack of jurisdiction. See Fed. R. App. P. 4(a)(1)(A). The district court s order denying McClurkin s motion pursuant to Fed. R. Civ. P. 60(b) is not appealable unless a circuit justice or judge issues a certificate of appealability. 28 U.S.C. § 2253(c)(1) (2006); Reid v. Angelone, 369 F.3d 363, 369 (4th Cir. 2004). issue absent constitutional prisoner reasonable a substantial right. satisfies jurists constitutional A certificate of appealability will not 28 U.S.C. this would claims by showing the the § 2253(c)(2) standard find of that district by any denial of (2006). demonstrating assessment court is a 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); 2 Rose v. Lee, 252 F.3d 676, 683-84 (4th Cir. 2001). We have independently reviewed the record and conclude that McClurkin has not made the requisite showing. certificate dispense of with appealability oral argument and Accordingly, we deny a dismiss because the the appeal. facts and We legal contentions are adequately presented in the materials before the court and argument would not aid the decisional process. DISMISSED 3
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