Michael McNeill v. Theodis Beck

Filing 920081020

Opinion

UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT

No. 08-7626

MICHAEL MCNEILL, Petitioner - Appellant, v. THEODIS BECK, Correction, Secretary, North Carolina Department of

Respondent ­ Appellee.

Appeal from the United States District Court for the Middle District of North Carolina, at Durham. James A. Beaty, Jr., Chief District Judge. (1:08-cv-00209-JAB-PTS)

Submitted:

October 14, 2008

Decided:

October 20, 2008

Before KING, GREGORY, and AGEE, Circuit Judges.

Dismissed by unpublished per curiam opinion.

Michael McNeill, Appellant Pro Se. Clarence Joe DelForge, III, Assistant Attorney General, Mary Carla Hollis, Assistant Attorney General, NORTH CAROLINA DEPARTMENT OF JUSTICE, Raleigh, North Carolina, for Appellee.

Unpublished opinions are not binding precedent in this circuit.

PER CURIAM: Michael McNeill 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 (2000) petition. The order is not appealable unless a circuit justice or judge issues a certificate of appealability. (2000). 28 U.S.C. § 2253(c)(1)

A certificate of appealability will not issue absent "a

substantial showing of the denial of a constitutional right." 28 U.S.C. by § 2253(c)(2) (2000). that A prisoner satisfies would this find

standard

demonstrating

reasonable

jurists

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. 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). that we We have independently has not made motion reviewed the for the record and

conclude

McNeill deny

requisite a

showing. of

Accordingly,

McNeill's

certificate

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. DISMISSED

2