Steven Updike v. Gene Johnson

Filing 920081216

Opinion

UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT

No. 08-7269

STEVEN LEE UPDIKE, Petitioner ­ Appellant, v. GENE M. JOHNSON, Director, Virginia Department of Corrections; ROBERT FRANCIS MCDONNELL, Attorney General of the State of Virginia, Respondents ­ Appellees.

Appeal from the United States District Court for the Eastern District of Virginia, at Alexandria. Liam O'Grady, District Judge. (1:08-cv-00325-LO-JFA)

Submitted:

December 5, 2008

Decided:

December 16, 2008

Before TRAXLER and MOTZ, Circuit Judges, and HAMILTON, Senior Circuit Judge.

Dismissed by unpublished per curiam opinion.

Steven Lee Updike, Appellant Pro Se.

Unpublished opinions are not binding precedent in this circuit.

PER CURIAM: Steven Lee Updike seeks to appeal the district court's order dismissing as untimely his 28 U.S.C. § 2254 (2000)

petition. or judge

The order is not appealable unless a circuit justice issues a certificate of appealability. 28 U.S.C.

§ 2253(c)(1) (2000). issue absent "a

A certificate of appealability will not showing U.S.C. standard find the that of the denial of a A that the or

substantial 28

constitutional prisoner reasonable

right." this would by

§ 2253(c)(2) by any

(2000).

satisfies jurists

demonstrating assessment is of

constitutional

claims

district

court

debatable

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). We have

independently reviewed the record and conclude that Updike has not made the of requisite showing. and Accordingly, dismiss the the we deny a We legal

certificate dispense

appealability oral argument

appeal. and

with

because

facts

contentions are adequately presented in the materials before the court and argument would not aid the decisional process.

DISMISSED

2