                               UNPUBLISHED

                   UNITED STATES COURT OF APPEALS
                       FOR THE FOURTH CIRCUIT


                               No. 10-6896


BENJAMIN WILLIAM FAWLEY,

                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.    Mark S. Davis, District
Judge. (2:09-cv-00452-MSD-FBS)


Submitted:   August 26, 2010                 Decided:    September 7, 2010


Before KING and DUNCAN, Circuit Judges, and HAMILTON, Senior
Circuit Judge.


Dismissed by unpublished per curiam opinion.


Benjamin William Fawley, Appellant Pro Se.      Erin M. Kulpa,
OFFICE OF THE ATTORNEY GENERAL OF VIRGINIA, Richmond, Virginia,
for Appellee.


Unpublished opinions are not binding precedent in this circuit.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

              Benjamin William Fawley seeks to appeal the district

court’s    order     accepting      the     recommendation       of    the    magistrate

judge and 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).                When the

district court denies relief on the merits, a prisoner satisfies

this    standard     by    demonstrating         that   reasonable      jurists      would

find that the district court’s assessment of the constitutional

claims is debatable or wrong.                Slack v. McDaniel, 529 U.S. 473,

484    (2000);     see    Miller-El    v.    Cockrell,     537    U.S.       322,   336-38

(2003).       When the district court denies relief on procedural

grounds, the prisoner must demonstrate both that the dispositive

procedural ruling is debatable, and that the petition states a

debatable claim of the denial of a constitutional right.                            Slack,

529 U.S. at 484-85.

              We have independently reviewed the record and conclude

that Fawley has not made the requisite showing.                        Accordingly, we

deny a certificate of appealability and dismiss the appeal.                              We

deny his motion to appoint counsel and to compel provision of

state court documents.             We dispense with oral argument because

                                             2
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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