                              UNPUBLISHED

                    UNITED STATES COURT OF APPEALS
                        FOR THE FOURTH CIRCUIT


                              No. 09-6136


CLAYTON BENJAMIN, JR., a/k/a Clayton Benjamin,

                  Petitioner - Appellant,

             v.

ANTHONY J. PADULA, Warden, Lee Correctional Institution,

                  Respondent - Appellee.



Appeal from the United States District Court for the District of
South Carolina, at Anderson.   Terry L. Wooten, District Judge.
(8:07-cv-04019-TLW)


Submitted:    July 30, 2009                 Decided:   August 4, 2009


Before MOTZ, KING, and DUNCAN, Circuit Judges.


Dismissed by unpublished per curiam opinion.


Clayton Benjamin, Jr., Appellant Pro Se. James Anthony Mabry,
Assistant  Attorney  General,   Donald John  Zelenka,  Deputy
Assistant Attorney General, Columbia, South Carolina, for
Appellee.


Unpublished opinions are not binding precedent in this circuit.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

               Clayton Benjamin, Jr., 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 Benjamin 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    also       deny    Benjamin’s

motion    to    appoint         counsel       and    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
                                                2
