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UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT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Dismissed by unpublished per curiam opinion.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Unpublished opinions are not binding precedent in this circuit.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
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