                              UNPUBLISHED

                    UNITED STATES COURT OF APPEALS
                        FOR THE FOURTH CIRCUIT


                              No. 09-7368


KEVIN ERIC KESTERSON,

                  Petitioner – Appellant,

             v.

DAVID BALLARD, Warden,

                  Respondent – Appellee.



Appeal from the United States District Court for the Southern
District of West Virginia, at Charleston.  Joseph R. Goodwin,
Chief District Judge. (2:08-cv-00903)


Submitted:    December 17, 2009             Decided:   February 17, 2010


Before NIEMEYER, MICHAEL, and GREGORY, Circuit Judges.


Dismissed by unpublished per curiam opinion.


Kevin Eric Kesterson, Appellant Pro Se.          Dawn Ellen Warfield,
Deputy   Attorney General,   Charleston,         West  Virginia,  for
Appellee.


Unpublished opinions are not binding precedent in this circuit.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

             Kevin    Eric       Kesterson         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).          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 Kesterson

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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