Gary Vannatter, Sr. v. Michael McCall , 459 F. App'x 281 ( 2011 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 11-6576
GARY VANNATTER, SR.,
Petitioner - Appellant,
v.
MICHAEL MCCALL, Warden of Perry Correctional Institute,
Respondent - Appellee.
Appeal from the United States District Court for the District of
South Carolina, at Greenville. Joseph F. Anderson, Jr.,
District Judge. (6:11-cv-00235-JFA)
Submitted: December 20, 2011 Decided: December 22, 2011
Before MOTZ, DUNCAN, and DIAZ, Circuit Judges.
Dismissed by unpublished per curiam opinion.
Gary Vannatter, Sr., Appellant Pro Se.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Gary Vannatter, Sr., seeks to appeal the district
court’s order accepting the recommendation of the magistrate
judge to dismiss Vannatter’s 28 U.S.C. § 2254 (2006) petition as
an unauthorized, successive 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) (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 Vannatter 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
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before the court and argument would not aid the decisional
process.
DISMISSED
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