Daniel Herbert v. Gene Johnson
UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT
DANIEL CHRISTOPHER HERBERT, Petitioner - Appellant, v. GENE M. JOHNSON, Virginia Department of Corrections, Respondent - Appellee.
Appeal from the United States District Court for the Western District of Virginia, at Roanoke. James C. Turk, Senior District Judge. (7:07-cv-00357-jct-mfu)
April 24, 2008
April 29, 2008
Before KING and SHEDD, Circuit Judges, and WILKINS, Senior Circuit Judge.
Dismissed by unpublished per curiam opinion.
Daniel Christopher Herbert, Appellant Pro Se.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM: Daniel Christopher Herbert seeks to appeal the district court's order dismissing as untimely his 28 U.S.C. § 2254 (2000) petition. judge The order is not appealable unless a circuit justice or 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." 28 U.S.C. § 2253(c)(2) (2000). A prisoner satisfies this
standard by demonstrating that reasonable jurists 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. 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 Herbert has not made the requisite showing. Accordingly, we deny Herbert's motion for 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 before the court and argument would not aid the decisional process.
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