                              UNPUBLISHED

                    UNITED STATES COURT OF APPEALS
                        FOR THE FOURTH CIRCUIT


                              No. 09-7129


ALBERTO PEAKE,

                  Petitioner – Appellant,

             v.

GENE M. JOHNSON,      Director   of   the   Virginia   Department   of
Corrections,

                  Respondent – Appellee.



Appeal from the United States District Court for the Eastern
District of Virginia, at Norfolk. Rebecca Beach Smith, District
Judge. (2:08-cv-00606-RBS-FBS)


Submitted:    October 20, 2009               Decided:    October 26, 2009


Before TRAXLER, Chief Judge,           NIEMEYER,   Circuit   Judge,      and
HAMILTON, Senior Circuit Judge.


Dismissed by unpublished per curiam opinion.


Alberto Peake, Appellant Pro Se.       Thomas Drummond Bagwell,
Assistant Attorney General, Richmond, Virginia, for Appellee.


Unpublished opinions are not binding precedent in this circuit.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

              Alberto     Peake    seeks      to     appeal      the     district        court’s

order accepting the recommendation of the magistrate judge and

denying as untimely his 28 U.S.C. § 2254 (2006) petition, and a

subsequent        order        denying        relief        on          his      motion         for

reconsideration.         The orders are 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 Peake has

not   made      the    requisite       showing.           Accordingly,            we     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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