Randall McBrayer v. Gene Johnson, No. 10-6517 (4th Cir. 2010)
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UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 10-6517 RANDALL MCBRAYER, Petitioner Appellant, v. GENE M. JOHNSON, Director of VDOC, Respondent Appellee. Appeal from the United States District Court for the Eastern District of Virginia, at Richmond. M. Hannah Lauck, Magistrate Judge. (3:09-cv-00411-MHL) Submitted: July 22, 2010 Decided: August 2, 2010 Before NIEMEYER, GREGORY, and SHEDD, Circuit Judges. Dismissed by unpublished per curiam opinion. Randall McBrayer, Appellant Pro Se. Leah A. Darron, OFFICE OF THE ATTORNEY GENERAL OF VIRGINIA, Richmond, Virginia, for Appellee. Unpublished opinions are not binding precedent in this circuit. PER CURIAM: Randall McBrayer seeks to appeal the magistrate judge s order 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 a appealability. 28 U.S.C. A certificate of appealability will not substantial constitutional right. of showing of the denial 28 U.S.C. § 2253(c)(2) (2006). of a When the district court denies relief on the merits, a prisoner satisfies this standard by demonstrating that reasonable jurists would find that the district court s assessment of the constitutional claims is debatable or wrong. Slack v. McDaniel, 529 U.S. 473, 484 Cockrell, (2000); (2003). see Miller-El v. 537 U.S. 322, 336-38 When the district court denies relief on procedural grounds, the prisoner must demonstrate both that the dispositive procedural ruling is debatable, and that the petition states a debatable claim of the denial of a constitutional right. 529 U.S. at 484-85. Slack, We have independently reviewed the record and conclude that McBrayer 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 * The parties consented to the exercise of jurisdiction by the magistrate judge pursuant to 28 U.S.C. § 636(c) (2006). 2 and 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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