Hayes Malloy v. Warden Lee Correctional Instit

Filing 920091105

UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT

No. 09-6746

HAYES MALLOY, Petitioner ­ Appellant, v. 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. (8:08-cv-03125-TLW)

Submitted:

October 20, 2009

Decided:

November 5, 2009

Before WILKINSON, GREGORY, and AGEE, Circuit Judges.

Dismissed by unpublished per curiam opinion.

Hayes Malloy, Appellant Pro Se. Donald John Zelenka, Deputy Assistant Attorney General, Columbia, South Carolina, for Appellee.

Unpublished opinions are not binding precedent in this circuit.

PER CURIAM: Hayes order Malloy as seeks untimely to appeal 28 the district § 2254 court's (2006)

dismissing

his

U.S.C.

petition.

The order is not appealable unless a circuit justice See 28 U.S.C.

or judge issues a certificate of appealability. § 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. See 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 Malloy 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