                               UNPUBLISHED

                      UNITED STATES COURT OF APPEALS
                          FOR THE FOURTH CIRCUIT


                               No. 02-7541



MELVIN CURTIS SMITH,

                                               Petitioner - Appellant,

             versus


G. L. WOODARD, Superintendent        of   Johnston
Correctional Institution,

                                                Respondent - Appellee.



Appeal from the United States District Court for the Eastern
District of North Carolina, at Raleigh. James C. Fox, Senior
District Judge. (CA-00-914-5-F-3)


Submitted:    February 25, 2003               Decided:   March 10, 2003


Before LUTTIG, TRAXLER, and SHEDD, Circuit Judges.


Dismissed by unpublished per curiam opinion.


Melvin Curtis Smith, Appellant Pro Se.      Sandra Wallace-Smith,
Assistant Attorney General, Raleigh, North Carolina, for Appellee.


Unpublished opinions are not binding precedent in this circuit.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

     Melvin   Curtis    Smith    appeals    the   district    court’s   order

accepting the recommendation of the magistrate judge and denying

relief on his 28 U.S.C. § 2254 (2000) petition as untimely filed.

28 U.S.C. § 2244 (2000).          To be entitled to a certificate of

appealability, an appellant must make "a substantial showing of the

denial of a constitutional right."         28 U.S.C. § 2253(c)(2) (2000).

When dismissal occurs on procedural grounds, the petitioner "must

demonstrate both:       (1) ‘that jurists of reason would find it

debatable whether the petition states a valid claim of the denial

of a constitutional right,’ and (2) ‘that jurists of reason would

find it debatable whether the district court was correct in its

procedural ruling.’”         Rose v. Lee, 252 F.3d 676, 684 (4th Cir.)

(quoting Slack v. McDaniel, 529 U.S. 473, 484 (2000)), cert.

denied, 534 U.S. 941 (2001).

     Upon examination of Smith’s 28 U.S.C. § 2254 petition and the

record, we cannot conclude that reasonable jurists would find it

debatable   whether    the    district    court   correctly   concluded   the

petition was untimely.        See Smith v. Woodard, No. CA-00-914-5-F-3

(E.D.N.C. Sept. 5, 2002).*


     *
       The one-year limitations period commenced on October 5,
1998, ninety days after the North Carolina Court of Appeals
affirmed Smith’s conviction on July 7, 1998.            28 U.S.C.
§ 2244(d)(1)(A); Harris v. Hutchison, 209 F.3d 325, 327 (4th Cir.
2000).   Smith’s subsequent pursuit of collateral review in the
North Carolina Court of Appeals was properly filed, and tolled his
one-year filing period; however, Smith’s pursuit of collateral

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     Accordingly,   we    deny   a   certificate   of   appealability   and

dismiss the appeal.      See 28 U.S.C. § 2253(c) (2000).      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




review in the North Carolina Supreme Court was improperly filed,
and did not toll his filing period. Artuz v. Bennett, 531 U.S. 4,
8 (2000). Consequently, Smith’s 28 U.S.C. § 2254 was due by May 14,
2000. Smith’s petition was signed and therefore filed on December
1, 2000. Houston v. Lack, 487 U.S. 266, 270 (1988). Accordingly,
Smith’s 28 U.S.C. § 2254 petition was untimely filed.


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