Alberto Peake v. Gene Johnson

Filing 920091026

UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT

No. 09-7129

ALBERTO PEAKE, Petitioner ­ Appellant, v. GENE M. JOHNSON, Corrections, Director of the Virginia Department of

Respondent ­ Appellee.

Appeal from the United States District Court for the Eastern District of Virginia, at Norfolk. Rebecca Beach Smith, District Judge. (2:08-cv-00606-RBS-FBS)

Submitted:

October 20, 2009

Decided:

October 26, 2009

Before TRAXLER, Chief Judge, HAMILTON, Senior Circuit Judge.

NIEMEYER,

Circuit

Judge,

and

Dismissed by unpublished per curiam opinion.

Alberto Peake, Appellant Pro Se. Thomas Drummond Bagwell, Assistant Attorney General, Richmond, Virginia, for Appellee.

Unpublished opinions are not binding precedent in this circuit.

PER CURIAM: Alberto Peake seeks to appeal the district court's

order accepting the recommendation of the magistrate judge and denying as untimely his 28 U.S.C. § 2254 (2006) petition, and a subsequent order denying relief on his motion for

reconsideration. justice or judge

The orders are not appealable unless a circuit issues a certificate of appealability. 28

U.S.C. § 2253(c)(1) (2006). not issue absent "a

A certificate of appealability will showing of the denial (2006). of a A that the or

substantial 28

constitutional prisoner reasonable

right." this would by

U.S.C. standard

§ 2253(c)(2) by any

satisfies jurists

demonstrating assessment is of

find the

that

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 Peake has not made the of requisite showing. and Accordingly, dismiss the the we deny a We legal

certificate dispense

appealability oral argument

appeal. and

with

because

facts

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