Stanley Ballenger v. Robert Mauney

Filing 920090529

UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT

No. 09-6168

STANLEY M. BALLENGER, a/k/a Stanley Mark Ballenger, Petitioner ­ Appellant, v. ROBERT H. MAUNEY, Warden, Respondent ­ Appellee.

Appeal from the United States District Court for the District of South Carolina, at Greenville. R. Bryan Harwell, District Judge. (6:07-cv-00496-RBH)

Submitted:

May 21, 2009

Decided:

May 29, 2009

Before MOTZ, TRAXLER, and AGEE, Circuit Judges.

Dismissed by unpublished per curiam opinion.

Stanley Mark Ballenger, Appellant Pro Se. Samuel Creighton Waters, 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Unpublished opinions are not binding precedent in this circuit.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: Stanley Mark Ballenger 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 denial of his motion for

reconsideration thereof.

The orders are not appealable unless a

circuit justice or judge issues a certificate of appealability. 28 U.S.C. § 2253(c)(1) (2006). A certificate of appealability

will not issue absent "a substantial showing of the denial of a constitutional prisoner reasonable right." this would by 28 U.S.C. standard find the that § 2253(c)(2) by any (2006). A that the or

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 Ballenger has not made the requisite showing. certificate dispense of appealability oral argument and Accordingly, we deny a the appeal. and We legal

dismiss the

with

because

facts

contentions are adequately presented in the materials before the court and argument would not aid the decisional process. DISMISSED 2