Fate McClurkin v. Robert Stevenson

Filing 920100311

UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT

No. 09-7199

FATE T. MCCLURKIN, Petitioner - Appellant, v. ROBERT STEVENSON, Institution, Warden, Broad River Correctional

Respondent - Appellee.

Appeal from the United States District Court for the District of South Carolina, at Rock Hill. Terry L. Wooten, District Judge. (0:08-cv-00106-TLW)

Submitted:

March 2, 2010

Decided:

March 11, 2010

Before WILKINSON, DUNCAN, and AGEE, Circuit Judges.

Dismissed by unpublished per curiam opinion.

Fate T. McClurkin, 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Unpublished opinions are not binding precedent in this circuit.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: Fate T. McClurkin seeks to appeal the district court's orders accepting the recommendation of the magistrate judge and dismissing his petition under 28 U.S.C. § 2254 (2006), and

denying his motion for reconsideration. that McClurkin's appeal of the order

Our review discloses dismissing the § 2254

petition is untimely.

The order was entered on the docket on

March 23, 2009, and his notice of appeal was dated June 16, 2009. See Houston v. Lack, 487 U.S. 266 (1988). We accordingly See

dismiss the appeal of that order for lack of jurisdiction. Fed. R. App. P. 4(a)(1)(A).

The district court's order denying McClurkin's motion pursuant to Fed. R. Civ. P. 60(b) is not appealable unless a circuit justice or judge issues a certificate of appealability. 28 U.S.C. § 2253(c)(1) (2006); Reid v. Angelone, 369 F.3d 363, 369 (4th Cir. 2004). 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. Miller-El v. Cockrell, 537 U.S.

322, 336-38 (2003); Slack v. McDaniel, 529 U.S. 473, 484 (2000); 2

Rose v. Lee, 252 F.3d 676, 683-84 (4th Cir. 2001).

We have

independently reviewed the record and conclude that McClurkin 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

3