John Hearne v. Keith Davis

Filing 920090506

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UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 09-6101 JOHN W. HEARNE, Petitioner - Appellant, v. KEITH DAVIS, Warden, Respondent - Appellee. Appeal from the United States District Court for the Eastern District of Virginia, at Richmond. M. Hannah Lauck, Magistrate Judge. (3:08-cv-00171-MHL) Submitted: April 21, 2009 Decided: May 6, 2009 Before WILKINSON, MOTZ, and TRAXLER, Circuit Judges. Dismissed by unpublished per curiam opinion. John W. Hearne, Appellant Pro Se. Jennifer Conrad Williamson, OFFICE OF THE ATTORNEY GENERAL OF VIRGINIA, Richmond. Virginia, for Appellee. Unpublished opinions are not binding precedent in this circuit. PER CURIAM: John W. Hearne seeks to appeal the magistrate judge's * order dismissing as untimely his 28 U.S.C. 2254 (2006) petition. or judge The order is not appealable unless a circuit justice issues a certificate of appealability. 28 U.S.C. 2253(c)(1) (2006). 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 (2006). 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 Hearne has not made the requisite showing. Accordingly, we deny his motion We for a certificate of appealability and dismiss the appeal. dispense with oral argument because the facts and legal Both parties consented to proceed before judge pursuant to 28 U.S.C. 636(c) (2006). * a magistrate 2 contentions are adequately presented in the materials before the court and argument would not aid the decisional process. DISMISSED 3

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