Sandy Gainey v. South Carolina, No. 09-7796 (4th Cir. 2010)

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UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 09-7796 SANDY GAINEY, Petitioner - Appellant, v. SOUTH CAROLINA; ANTHONY Correctional Institution, PADULA, Warden of the Lee Respondents - Appellees. Appeal from the United States District Court for the District of South Carolina, at Beaufort. Patrick Michael Duffy, Senior District Judge. (9:08-cv-03900-PMD) Submitted: April 29, 2010 Decided: May 3, 2010 Before MOTZ and DUNCAN, Circuit Judges, and HAMILTON, Senior Circuit Judge. Dismissed by unpublished per curiam opinion. Sandy Gainey, Appellant Pro Se. Melody Jane Brown, Assistant Attorney General, Donald John Zelenka, Deputy Assistant Attorney General, Columbia, South Carolina, for Appellees. Unpublished opinions are not binding precedent in this circuit. PER CURIAM: Sandy Gainey seeks to appeal the district court s order accepting the recommendation of the magistrate judge and dismissing as untimely his 28 U.S.C. § 2254 (2006) petition. The order is not appealable unless a circuit justice or judge issues a certificate of appealability. (2006). 28 U.S.C. § 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 this would 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. 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). conclude We that have Gainey independently has not reviewed made the the record requisite and showing. Accordingly, we deny leave to proceed in forma pauperis, deny a certificate dispense of with appealability, and oral because argument dismiss 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 2

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