Tascoe v. Warden of Lee Correctional Institution , 701 F. App'x 274 ( 2017 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 17-6101
SHAWN DAVIS,
Petitioner - Appellant,
v.
WARDEN M. MCCALL,
Respondent - Appellee.
Appeal from the United States District Court for the District of South Carolina, at
Charleston. David C. Norton, District Judge. (2:14-cv-03850-DCN)
Submitted: November 16, 2017 Decided: November 20, 2017
Before GREGORY, Chief Judge, and TRAXLER and KEENAN, Circuit Judges.
Dismissed by unpublished per curiam opinion.
Shawn Davis, Appellant Pro Se. Donald John Zelenka, Deputy Attorney General,
Columbia, South Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Shawn Davis seeks to appeal the district court’s order denying as untimely his Fed.
R. Civ. P. 60(b) motion for reconsideration of its prior order accepting the magistrate
judge’s recommendation and dismissing Davis’ 28 U.S.C. § 2254 (2012) petition. The
order is not appealable unless a circuit justice or judge issues a certificate of appealability.
28 U.S.C. § 2253(c)(1)(A) (2012); Reid v. Angelone, 369 F.3d 363, 369 (4th Cir. 2004). 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) (2012). 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 Davis 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 this court and argument would not aid the
decisional process.
DISMISSED
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