                              UNPUBLISHED

                    UNITED STATES COURT OF APPEALS
                        FOR THE FOURTH CIRCUIT


                              No. 09-6290


BILLY AUSTIN,

                  Plaintiff - Appellant,

             v.

GENE M. JOHNSON,

                  Defendant - Appellee.



Appeal from the United States District Court for the Eastern
District of Virginia, at Norfolk. Rebecca Beach Smith, District
Judge. (2:08-cv-00135-RBS-FBS)


Submitted:    June 18, 2009                 Decided:   June 24, 2009


Before NIEMEYER, GREGORY, and DUNCAN, Circuit Judges.


Dismissed by unpublished per curiam opinion.


Billy Austin, Appellant Pro Se.       Craig Stallard,     Assistant
Attorney General, Richmond, Virginia, for Appellee.


Unpublished opinions are not binding precedent in this circuit.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

           Billy       Austin      seeks    to    appeal    the     district    court’s

order accepting the recommendation of the magistrate judge and

denying his 28 U.S.C. § 2254 (2006) petition as untimely.                              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    Austin       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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