Billy Lisenby, Jr. v. Cecilia Reynold

Filing

UNPUBLISHED PER CURIAM OPINION filed. Motion disposition in opinion--denying Motion certificate of appealability (Local Rule 22(a)) [999175257-2]; denying Motion to appoint/assign counsel [999175251-2], updating certificate of appealability status Originating case number: 5:12-cv-02666-DCN Copies to all parties and the district court/agency. [999263949]. Mailed to: Billy Lisenby, Jr.. [13-7317]

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UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT

No. 13-7317

BILLY LEE LISENBY, JR., a/k/a Malik Al-Shabazz,
Petitioner - Appellant,
v.
CECILIA REYNOLDS, Warden KCI,
Respondent - Appellee.

Appeal from the United States District Court for the District of
South Carolina, at Orangeburg. David C. Norton, District Judge.
(5:12-cv-02666-DCN)

Submitted:

December 17, 2013

Decided:

December 20, 2013

Before KING, GREGORY, and WYNN, Circuit Judges.

Dismissed by unpublished per curiam opinion.

Billy Lee Lisenby, Jr., Appellant Pro Se. Donald John Zelenka,
Senior
Assistant
Attorney
General,
James
Anthony
Mabry,
Assistant Attorney General, Columbia, South Carolina, for
Appellee.

Unpublished opinions are not binding precedent in this circuit.

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PER CURIAM:
Billy Lee Lisenby, Jr., seeks to appeal the district
court’s

order

accepting

the

recommendation

of

the

magistrate

judge and dismissing Lisenby’s 28 U.S.C. § 2254 (2006) petition
as untimely filed.
justice

or

judge

The order is not appealable unless a circuit
issues

a

certificate

U.S.C. § 2253(c)(1)(A) (2006).

of

appealability.

28

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).

When the

district court denies relief on the merits, a prisoner satisfies
this

standard

by

demonstrating

that

reasonable

jurists

would

find that the district court’s assessment of the constitutional
claims is debatable or wrong.

Slack v. McDaniel, 529 U.S. 473,

484

Cockrell,

(2000);

(2003).

see

Miller-El

v.

537

U.S.

322,

336-38

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.

Slack,

529 U.S. at 484-85.
We have independently reviewed the record and conclude
that Lisenby has not made the requisite showing.

Accordingly,

we deny Lisenby’s motion for a certificate of appealability and
dismiss

the

appeal.

appointment of counsel.

We

further

deny

Lisenby’s

motion

for

We dispense with oral argument because
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the facts and legal contentions are adequately presented in the
materials

before

this

court

and

argument

would

not

aid

the

decisional process.

DISMISSED

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