U.S. Court of Appeals for the Fourth Circuit, 2005

Burns v. Warden, Manning Correctional Institution

Burns v. Warden, Manning Correctional Institution
U.S. Court of Appeals for the Fourth Circuit · Decided January 12, 2005 · Luttig, Gregory, Hamilton
115 F. App'x 155

Burns v. Warden, Manning Correctional Institution

Opinion

PER CURIAM:

Larry D. Burns appeals from the dismissal of his 28 U.S.C. § 2254 (2000) petition as untimely filed. An appeal may not be taken from the final order in a § 2254 proceeding unless a circuit justice or judge issues a certificate of appealability. 28 U.S.C. § 2253(c)(1) (2000). 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) (2000). A prisoner satisfies this standard by demonstrating that jurists of reason would find that his constitutional claims are debatable and that any dispositive procedural rulings by the district court are also debatable or wrong. See Miller-El v. Cockrell, 537 U.S. 322, 336, 123 S.Ct. 1029, 154 L.Ed.2d 931 (2003); Slack v. McDaniel, 529 U.S. 473, 484, 120 S.Ct. 1595, 146 L.Ed.2d 542 (2000); Rose v. Lee, 252 F.3d 676, 683 (4th Cir. 2001).

We have reviewed the record and conclude that Burns has not made the requisite showing. We therefore deny Burns’ motions to proceed in forma pauperis and for appointment of counsel, deny a certificate of appealability, and dismiss the appeal. 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

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