Earl Cross v. Gene Johnson, No. 08-7390 (4th Cir. 2008)

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UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 08-7390 EARL JACOB CROSS, Petitioner Appellant, v. GENE M. JOHNSON, Corrections, Director, Virginia Department of Respondent Appellee. Appeal from the United States District Court for the Eastern District of Virginia, at Norfolk. Raymond A. Jackson, District Judge. (2:06-cv-00565-RAJ-FBS) Submitted: November 13, 2008 Decided: November 21, 2008 Before WILKINSON, NIEMEYER, and SHEDD, Circuit Judges. Dismissed by unpublished per curiam opinion. Earl Jacob Cross, Appellant Pro Se. Robert H. Anderson, III, OFFICE OF THE ATTORNEY GENERAL OF VIRGINIA, Richmond, Virginia, for Appellee. Unpublished opinions are not binding precedent in this circuit. PER CURIAM: Earl Jacob Cross seeks to appeal the district court s order denying his Fed. R. Civ. P. 60(b) motion for relief from the district court s order accepting the recommendation of the magistrate judge and dismissing as untimely his 28 U.S.C. § 2254 (2000) petition. justice or The order is not appealable unless a circuit judge issues a certificate of appealability. 28 U.S.C. § 2253(c)(1) (2000); Reid v. Angelone, 369 F.3d 363, 369 (4th Cir. 2004). issue absent constitutional prisoner a substantial right. satisfies reasonable jurists constitutional A certificate of appealability will not 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 Cross has not made the certificate dispense of with requisite showing. appealability oral argument and Accordingly, dismiss because 2 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 3

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