Brian Diggs v. Robert Stevenson

Filing 920090423

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UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 09-6152 BRIAN DIGGS, Petitioner - Appellant, v. ROBERT STEVENSON, Warden, Respondent - Appellee. Appeal from the United States District Court for the District of South Carolina, at Beaufort. G. Ross Anderson, Jr., District Judge. (9:08-cv-00540-GRA) Submitted: April 16, 2009 Decided: April 23, 2009 Before WILKINSON, GREGORY, and SHEDD, Circuit Judges. Dismissed by unpublished per curiam opinion. Brian Diggs, Appellant Pro Se. Melody Jane Brown, Donald John Zelenka, Assistant United States Attorneys, Columbia, South Carolina, for Appellee. Unpublished opinions are not binding precedent in this circuit. PER CURIAM: Brian Diggs 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 and the district court's order denying his motion for reconsideration filed under Fed. R. Civ. P. 59. These orders are not appealable unless a circuit justice or judge issues a certificate of appealability. certificate of appealability 28 U.S.C. 2253(c)(1) (2006). will not issue absent A "a substantial showing of the denial of a constitutional right." 28 U.S.C. by 2253(c)(2) (2006). 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 have independently has not made reviewed the the record and conclude Diggs requisite showing. Accordingly, we deny a certificate of appealability and dismiss the appeal. We dispense with oral argument because the facts and legal contentions are adequately presented in the materials 2 before the court and argument would not aid the decisional process. DISMISSED 3

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