Kevin Kesterson v. David Ballard

Filing 920100217

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UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 09-7368 KEVIN ERIC KESTERSON, Petitioner Appellant, v. DAVID BALLARD, Warden, Respondent Appellee.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 Dismissed by unpublished per curiam opinion.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 Dawn Ellen Warfield, West Virginia, for Unpublished opinions are not binding precedent in this circuit.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

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