                            UNPUBLISHED

                   UNITED STATES COURT OF APPEALS
                       FOR THE FOURTH CIRCUIT


                            No. 05-7213



MARLIN MCCLAIN,

                                             Petitioner - Appellant,

          versus


THOMAS L. MCBRIDE,      Warden,   Mount    Olive
Correctional Complex,

                                              Respondent - Appellee.

          and

MIKE COLEMAN, Warden,

                                                          Respondent.



Appeal from the United States District Court for the Southern
District of West Virginia, at Charleston. John T. Copenhaver, Jr.,
District Judge. (CA-04-1130)


Submitted: December 22, 2005              Decided:   December 30, 2005


Before WIDENER, NIEMEYER, and KING, Circuit Judges.


Dismissed by unpublished per curiam opinion.


Marlin McClain, Appellant Pro Se. Darrell V. McGraw, Jr., Dawn
Ellen Warfield, OFFICE OF THE ATTORNEY GENERAL OF WEST VIRGINIA,
Charleston, West Virginia, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
See Local Rule 36(c).




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PER CURIAM:

            Marlin McClain 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 (2000) petition.                    This 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 is debatable and

that any dispositive procedural findings by the district court are

also debatable or wrong.        See 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 (4th Cir. 2001).                   We have independently

reviewed the record and conclude that McClain 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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