Spann v. Burtt

Filing 920080226

Opinion

UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT

No. 07-7619

DERRIAN LATROYCE SPANN, Petitioner - Appellant, v. STAN BURTT, Warden, Respondent - Appellee, and HENRY MCMASTER, Attorney General for South Carolina, Respondent.

Appeal from the United States District Court for the District of South Carolina, at Florence. Henry F. Floyd, District Judge. (4:06-cv-03083-HFF)

Submitted:

February 21, 2008

Decided:

February 26, 2008

Before MOTZ and GREGORY, Circuit Judges, and WILKINS, Senior Circuit Judge.

Dismissed by unpublished per curiam opinion.

Derrian LaTroyce Spann, Appellant Pro Se. Samuel Creighton Waters, Donald John Zelenka, OFFICE OF THE ATTORNEY GENERAL OF SOUTH CAROLINA, Columbia, South Carolina, for Appellee.

Unpublished opinions are not binding precedent in this circuit.

PER CURIAM: Derrian LaTroyce Spann seeks to appeal the district court's order accepting the recommendation of the magistrate judge and denying as untimely his 28 U.S.C. § 2254 (2000) petition. The

order is not appealable unless a circuit justice or judge issues a certificate of appealability. See 28 U.S.C. § 2253(c)(1) (2000).

A certificate of appealability will not issue absent "a substantial showing of the denial of a constitutional right." § 2253(c)(2) (2000). that A prisoner satisfies would this 28 U.S.C. standard that by any

demonstrating

reasonable

jurists

find

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). We have independently reviewed the record and conclude that Spann has not made the requisite showing. Accordingly, we deny a We dispense

certificate of appealability and dismiss the appeal.

with oral argument because the facts and legal contentions are adequately presented in the materials before the court and argument would not aid the decisional process. DISMISSED

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