                              UNPUBLISHED

                    UNITED STATES COURT OF APPEALS
                        FOR THE FOURTH CIRCUIT


                              No. 09-7421


ELMER A. KISNER, JR.,

                  Petitioner – Appellant,

             v.

WARDEN, SMCC WILLIAM FOX; STATE OF WEST VIRGINIA,

                  Respondents – Appellees.



Appeal from the United States District Court for the Northern
District of West Virginia, at Martinsburg. John Preston Bailey,
Chief District Judge. (3:08-cv-00138-JPB-JSK)


Submitted:    January 14, 2010               Decided:   January 21, 2010


Before MOTZ, GREGORY, and SHEDD, Circuit Judges.


Dismissed by unpublished per curiam opinion.


Elmer A. Kisner, Jr., Appellant Pro Se.           Dawn Ellen Warfield,
Deputy   Attorney General,  Charleston,          West   Virginia,  for
Appellees.


Unpublished opinions are not binding precedent in this circuit.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

               Elmer    A.      Kisner,        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 Kisner 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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