                              UNPUBLISHED

                    UNITED STATES COURT OF APPEALS
                        FOR THE FOURTH CIRCUIT


                              No. 10-6220


BOBBY WHELCHEL,

                  Petitioner – Appellant,

          v.

CECILIA R. REYNOLDS,

                  Respondent – Appellee.



Appeal from the United States District Court for the District of
South Carolina, at Rock Hill.     Patrick Michael Duffy, Senior
District Judge. (0:09-cv-00578-PMD)


Submitted:   February 28, 2011              Decided:   March 7, 2011


Before TRAXLER, Chief Judge, and KING and DIAZ, Circuit Judges.


Dismissed by unpublished per curiam opinion.


Bobby Whelchel, Appellant Pro Se. Donald John Zelenka, Deputy
Assistant Attorney General, Columbia, South Carolina, for
Appellee.


Unpublished opinions are not binding precedent in this circuit.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

              Bobby Whelchel 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    Whelchel      has    not     made     the     requisite      showing.

Accordingly, we deny a certificate of appealability, deny leave

to   proceed    in    forma       pauperis,       and    dismiss     the       appeal.     We

dispense      with    oral        argument      because      the     facts       and     legal



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contentions are adequately presented in the materials before the

court and argument would not aid the decisional process.



                                                           DISMISSED




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