Thomas Rand v. Anthony Padula

Filing 920090902

UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT

No. 09-6412

THOMAS RAND, Petitioner - Appellant, v. ANTHONY J. PADULA, Warden of Lee Correctional Institution, Respondent - Appellee.

Appeal from the United States District Court for the District of South Carolina, at Columbia. Henry F. Floyd, District Judge. (3:08-cv-00907-HFF)

Submitted:

August 26, 2009

Decided: September 2, 2009

Before TRAXLER, Judges.

Chief

Judge,

and

GREGORY

and

SHEDD,

Circuit

Dismissed by unpublished per curiam opinion.

Thomas Rand, Appellant Pro Se. Donald John Zelenka, Deputy Assistant Attorney General, Melody Jane Brown, Assistant Attorney General, Columbia, South Carolina, for Appellee.

Unpublished opinions are not binding precedent in this circuit.

PER CURIAM: Thomas Rand 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. The order is not appealable unless a circuit justice or judge issues a certificate of appealability. (2006). 28 U.S.C. § 2253(c)(1)

A certificate of appealability will not issue absent "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

Rand

requisite

showing.

Accordingly, we deny Rand's motion for appointment of counsel and for 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 before the court and argument would not aid the decisional process. DISMISSED

2