Derrick Harrell v. Anthony Hathaway, No. 08-7685 (4th Cir. 2009)

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UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 08-7685 DERRICK HARRELL, Petitioner - Appellant, v. ANTHONY HATHAWAY, Respondent - Appellee. Appeal from the United States District Court for the Eastern District of North Carolina, at Raleigh. Malcolm J. Howard, Senior District Judge. (5:07-hc-02052-H) Submitted: March 6, 2009 Decided: April 8, 2009 Before MICHAEL, SHEDD, and DUNCAN, Circuit Judges. Dismissed by unpublished per curiam opinion. Derrick Harrell, Appellant Pro Se. Clarence Joe DelForge, III, Assistant Attorney General, Raleigh, North Carolina, for Appellee. Unpublished opinions are not binding precedent in this circuit. PER CURIAM: Derrick Harrell seeks to appeal the district court s order denying his post-judgment motion, construed by the court as a motion pursuant reconsideration of to the Fed. court s R. Civ. order P. 59(e), dismissing as seeking untimely Harrell s 28 U.S.C. § 2254 (2006) petition. The order is not appealable judge unless certificate (2006). of a circuit justice appealability. See or 28 U.S.C. issues a § 2253(c)(1) A certificate of appealability will not issue absent a substantial showing of the denial of a constitutional right. 28 U.S.C. standard § 2253(c)(2) by (2006). demonstrating that A prisoner reasonable satisfies jurists would this find that any assessment of the constitutional claims by the district court is debatable or wrong and that any dispositive procedural ruling by the district court is likewise debatable. See 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). On appeal, we confine our review to the issues raised in the informal brief. See 4th Cir. R. 34(b). Harrell s brief alleges no error committed by the district court in denying his motion, and we discern none. Accordingly, we deny a certificate of appealability and dismiss the appeal. We dispense with oral argument because the facts and legal contentions are adequately 2 presented in the materials before the court and argument would not aid the decisional process. DISMISSED 3

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