Steven Updike v. Gene Johnson, No. 08-7269 (4th Cir. 2008)

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UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 08-7269 STEVEN LEE UPDIKE, Petitioner Appellant, v. GENE M. JOHNSON, Director, Virginia Department of Corrections; ROBERT FRANCIS MCDONNELL, Attorney General of the State of Virginia, Respondents Appellees. Appeal from the United States District Court for the Eastern District of Virginia, at Alexandria. Liam O Grady, District Judge. (1:08-cv-00325-LO-JFA) Submitted: December 5, 2008 Decided: December 16, 2008 Before TRAXLER and MOTZ, Circuit Judges, and HAMILTON, Senior Circuit Judge. Dismissed by unpublished per curiam opinion. Steven Lee Updike, Appellant Pro Se. Unpublished opinions are not binding precedent in this circuit. PER CURIAM: Steven Lee Updike seeks to appeal the district court s order dismissing petition. or judge as untimely issues absent constitutional prisoner 28 U.S.C. § 2254 (2000) The order is not appealable unless a circuit justice a certificate § 2253(c)(1) (2000). issue his a substantial right. jurists constitutional appealability. 28 U.S.C. A certificate of appealability will not satisfies reasonable of 28 this would claims by showing U.S.C. the the denial § 2253(c)(2) standard find of by that (2000). demonstrating any district of assessment court is a A that of the debatable 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 Updike has not made the certificate dispense of with requisite showing. appealability oral argument and Accordingly, dismiss because the the we deny appeal. facts and a We 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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