Willie Asbury v. Robert Stevenson, III, No. 10-7516 (4th Cir. 2011)
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UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 10-7516 WILLIE JAMES ASBURY, Petitioner - Appellant, v. ROBERT M. STEVENSON, III, Warden Broad River Correctional Institution, Respondent - Appellee. Appeal from the United States District Court for the District of South Carolina, at Columbia. David C. Norton, Chief District Judge. (3:09-cv-02557-DCN) Submitted: February 10, 2011 Decided: February 23, 2011 Before WILKINSON and DAVIS, Circuit Judges, and HAMILTON, Senior Circuit Judge. Dismissed by unpublished per curiam opinion. Willie James Asbury, Appellant Pro Se. Assistant Attorney General, Columbia, Appellee. James Anthony Mabry, South Carolina, for Unpublished opinions are not binding precedent in this circuit. PER CURIAM: Willie court s order James Asbury accepting the seeks to appeal recommendation of the the district magistrate judge and 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 (2000); Cockrell, (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 Asbury 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 and legal contentions are adequately presented in the materials 2 before the court and argument would not aid the decisional process. DISMISSED 3
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