                              UNPUBLISHED

                    UNITED STATES COURT OF APPEALS
                        FOR THE FOURTH CIRCUIT


                              No. 08-7210


ROBERT EUGENE SMITH,

                  Petitioner - Appellant,

             v.

STATE OF NORTH CAROLINA,

                  Respondent - Appellee.



Appeal from the United States District Court for the Eastern
District of North Carolina, at Raleigh.   Malcolm J. Howard,
Senior District Judge. (5:07-hc-02107-H)


Submitted:    November 13, 2008             Decided:   November 20, 2008


Before WILKINSON, NIEMEYER, and SHEDD, Circuit Judges.


Dismissed by unpublished per curiam opinion.


Robert Eugene Smith, Appellant Pro Se.    Clarence Joe DelForge,
III, Assistant Attorney General, NORTH CAROLINA DEPARTMENT OF
JUSTICE, Raleigh, North Carolina, for Appellee.


Unpublished opinions are not binding precedent in this circuit.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

             Robert     Eugene       Smith    seeks      to    appeal      the    district

court’s order dismissing as untimely his 28 U.S.C. § 2254 (2000)

petition.     The order is not appealable 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

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 Smith 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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