UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT

No. 99-6378

ANTHONY SMITH, Petitioner - Appellant, versus

STEPHEN D. MULLER, Respondent - Appellee.

Appeal from the United States District Court for the Eastern Dis- trict of North Carolina, at Raleigh. W. Earl Britt, Senior Dis- trict Judge. (CA-99-61-5-BR)

Submitted: May 13, 1999 Decided: May 19, 1999

Before WIDENER and MOTZ, Circuit Judges, and BUTZNER, Senior Cir- cuit Judge.

Dismissed by unpublished per curiam opinion.

Anthony Smith, Appellant Pro Se.

Unpublished opinions are not binding precedent in this circuit.

See Local Rule 36(c).

PER CURIAM: Anthony Smith seeks to appeal the district court’s marginal order denying his motion for reconsideration from the denial of his petition filed under 28 U.S.C.A. § 2254 (West 1994 & Supp. 1998) as untimely filed. We have reviewed the record and the district court’s opinion dismissing the petition as untimely and find no reversible error. Accordingly, we deny a certificate of appeal- ability and dismiss the appeal on the reasoning of the district court. See Smith v. Muller, No. CA-99-61-5-BR (E.D.N.C. Mar. 11, 1999). We dispense with oral argument because the facts and legal contentions are adequately presented in the materials before the court and argument would not aid the decisional process.

DISMISSED