Johnny Burnside v. Robert Stevenson, No. 13-7079 (4th Cir. 2013)

Annotate this Case
Download PDF
UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 13-7079 JOHNNY BURNSIDE, Petitioner - Appellant, v. ROBERT M. STEVENSON, Warden - BRCI, Respondent - Appellee. Appeal from the United States District Court for the District of South Carolina, at Beaufort. Joseph F. Anderson, Jr., District Judge. (9:11-cv-03354-JFA) Submitted: November 21, 2013 Decided: November 25, 2013 Before KING, DUNCAN, and DIAZ, Circuit Judges. Dismissed by unpublished per curiam opinion. Johnny Burnside, Appellant Pro Se. Donald John Zelenka, Senior Assistant Attorney General, Melody Jane Brown, Assistant Attorney General, Columbia, South Carolina, for Appellee. Unpublished opinions are not binding precedent in this circuit. PER CURIAM: Johnny Burnside 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 § 2253(c)(1)(A) (2006). issue absent a of appealability. U.S.C. A certificate of appealability will not substantial constitutional right. 28 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 Cockrell, (2000); (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. Slack, 529 U.S. at 484-85. We have independently reviewed the record and conclude that Burnside has not made the requisite showing. Accordingly, we deny a certificate of appealability and dismiss the appeal. Burnside s dispense motion with for oral appointment argument of because 2 counsel is denied. the facts and We legal contentions are adequately presented in the materials before this court and argument would not aid the decisional process. DISMISSED 3