Clayton Benjamin, Jr. v. Anthony Padula

Filing 920090804

UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT

No. 09-6136

CLAYTON BENJAMIN, JR., a/k/a Clayton Benjamin, Petitioner - Appellant, v. ANTHONY J. PADULA, Warden, Lee Correctional Institution, Respondent - Appellee.

Appeal from the United States District Court for the District of South Carolina, at Anderson. Terry L. Wooten, District Judge. (8:07-cv-04019-TLW)

Submitted:

July 30, 2009

Decided:

August 4, 2009

Before MOTZ, KING, and DUNCAN, Circuit Judges.

Dismissed by unpublished per curiam opinion.

Clayton Benjamin, Jr., Appellant Pro Se. James Anthony Mabry, Assistant Attorney General, Donald John Zelenka, Deputy Assistant Attorney General, Columbia, South Carolina, for Appellee.

Unpublished opinions are not binding precedent in this circuit.

PER CURIAM: Clayton Benjamin, Jr., 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 (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 Benjamin has not made the requisite showing. Accordingly, we deny a

certificate of appealability, deny leave to proceed in forma pauperis, motion to and dismiss the appeal. and We also with deny Benjamin's argument

appoint

counsel

dispense

oral

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