                             UNPUBLISHED

                    UNITED STATES COURT OF APPEALS
                        FOR THE FOURTH CIRCUIT


                             No. 05-7492



JOSEPH M. HERBIN,

                                            Petitioner - Appellant,

          versus


GENE M. JOHNSON,

                                             Respondent - Appellee.



Appeal from the United States District Court for the Eastern
District of Virginia, at Norfolk. Walter D. Kelley, Jr., District
Judge. (CA-05-116-2)


Submitted: December 22, 2005                Decided: January 4, 2006


Before WIDENER, NIEMEYER, and KING, Circuit Judges.


Dismissed by unpublished per curiam opinion.


Joseph M. Herbin, Appellant Pro Se. Donald Eldridge Jeffrey, III,
OFFICE OF THE ATTORNEY GENERAL OF VIRGINIA, Richmond, Virginia, for
Appellee.


Unpublished opinions are not binding precedent in this circuit.
See Local Rule 36(c).
PER CURIAM:

              Joseph M. Herbin, a state prisoner, seeks to appeal the

district      court’s    order    accepting     the     recommendation      of    the

magistrate judge and dismissing as untimely Herbin’s petition filed

under 28 U.S.C. § 2254 (2000).           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    the     district     court’s     assessment       of    his

constitutional      claims      are   debatable   and    that    any    dispositive

procedural rulings by the district court are also debatable or

wrong.     See Miller-El v. Cockrell, 537 U.S. 322, 336 (2003);

Slack v. McDaniel, 529 U.S. 473, 484 (2000); Rose v. Lee, 252 F.3d

676, 683 (4th Cir. 2001).              We have independently reviewed the

record and conclude that Herbin 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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