Willie Frazier v. Warden Steven

Filing 920100528

UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT

No. 10-6418

WILLIE FRAZIER, Petitioner - Appellant, v. WARDEN STEVENS, Respondent - Appellee.

Appeal from the United States District Court for the District of South Carolina, at Florence. Joseph F. Anderson, Jr., District Judge. (4:09-cv-00302-JFA)

Submitted:

May 20, 2010

Decided:

May 28, 2010

Before WILKINSON, NIEMEYER, and DAVIS, Circuit Judges.

Dismissed by unpublished per curiam opinion.

Willie Frazier, Appellant Pro Se. Donald John Zelenka, Deputy Assistant Attorney General, James Anthony Mabry, Assistant Attorney General, Columbia, South Carolina, for Appellee.

Unpublished opinions are not binding precedent in this circuit.

PER CURIAM: Willie Frazier seeks to appeal the district court's order accepting the recommendation of the magistrate judge and dismissing as untimely his 28 U.S.C. § 2254 (2006) petition. The order is not appealable unless a circuit justice or judge issues a certificate of appealability. (2006). 28 U.S.C. § 2253(c)(1)

A certificate of appealability will not issue absent "a

substantial showing of the denial of a constitutional right." 28 U.S.C. § 2253(c)(2) (2006). relief on the merits, that a When the district court denies satisfies would this standard that claims 473, by the is 484

prisoner

demonstrating district debatable

reasonable of v.

jurists the

find

court's or

assessment Slack

constitutional 529 U.S.

wrong.

McDaniel,

(2000); see Miller-El v. Cockrell, 537 U.S. 322, 336-38 (2003). When the district court denies relief on procedural grounds, the prisoner must demonstrate both that the dispositive procedural ruling is debatable, and that the petition states a debatable claim of the denial of a constitutional right. at 484-85. that we We have independently has not made motion reviewed the for Slack, 529 U.S. the record and

conclude

Frazier deny

requisite a

showing. of

Accordingly,

Frazier's

certificate

appealability and dismiss the appeal.

We dispense with oral

argument because the facts and legal contentions are adequately

2

presented in the materials before the court and argument would not aid the decisional process. DISMISSED

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