Steven Updike v. Gene Johnson

Filing 920081216

Opinion

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UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 08-7269 STEVEN LEE UPDIKE, Petitioner Appellant, v. GENE M. JOHNSON, Director, Virginia Department of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 Dismissed by unpublished per curiam opinion.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 Unpublished opinions are not binding precedent in this circuit.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

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