                               UNPUBLISHED

                    UNITED STATES COURT OF APPEALS
                        FOR THE FOURTH CIRCUIT


                               No. 09-6101


JOHN W. HEARNE,

                  Petitioner - Appellant,

             v.

KEITH DAVIS, Warden,

                  Respondent - Appellee.



Appeal from the United States District Court for the Eastern
District of Virginia, at Richmond. M. Hannah Lauck, Magistrate
Judge. (3:08-cv-00171-MHL)


Submitted:    April 21, 2009                 Decided:   May 6, 2009


Before WILKINSON, MOTZ, and TRAXLER, Circuit Judges.


Dismissed by unpublished per curiam opinion.


John W. Hearne, Appellant Pro Se.   Jennifer Conrad Williamson,
OFFICE OF THE ATTORNEY GENERAL OF VIRGINIA, Richmond. Virginia,
for Appellee.


Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:

              John W. Hearne seeks to appeal the magistrate judge’s *

order       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.            28     U.S.C.

§ 2253(c)(1) (2006).              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).         A

prisoner       satisfies          this        standard       by        demonstrating           that

reasonable       jurists        would     find       that        any    assessment        of    the

constitutional        claims      by     the    district          court   is    debatable        or

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 Hearne has

not made the requisite showing.                     Accordingly, we deny his motion

for a certificate of appealability and dismiss the appeal.                                       We

dispense       with    oral       argument       because          the     facts     and        legal




        *
       Both parties consented to proceed before                                 a   magistrate
judge pursuant to 28 U.S.C. § 636(c) (2006).



                                                2
contentions are adequately presented in the materials before the

court and argument would not aid the decisional process.



                                                           DISMISSED




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