Kevin Kesterson v. David Ballard

Filing 920100217

UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT

No. 09-7368

KEVIN ERIC KESTERSON, Petitioner ­ Appellant, v. DAVID BALLARD, Warden, Respondent ­ Appellee.

Appeal from the United States District Court for the Southern District of West Virginia, at Charleston. Joseph R. Goodwin, Chief District Judge. (2:08-cv-00903)

Submitted:

December 17, 2009

Decided:

February 17, 2010

Before NIEMEYER, MICHAEL, and GREGORY, Circuit Judges.

Dismissed by unpublished per curiam opinion.

Kevin Eric Kesterson, Appellant Pro Se. Deputy Attorney General, Charleston, Appellee.

Dawn Ellen Warfield, West Virginia, for

Unpublished opinions are not binding precedent in this circuit.

PER CURIAM: Kevin court's order Eric Kesterson the seeks to appeal of the district

accepting

recommendation

the

magistrate

judge and dismissing as untimely his 28 U.S.C. § 2254 (2006) petition. or judge The order is not appealable unless a circuit justice issues a certificate of appealability. 28 U.S.C.

§ 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. 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 Kesterson 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