Poole v. Warden, Perry Correctional Institution , 707 F. App'x 136 ( 2017 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 17-7369
MARLON RIVERA,
Petitioner - Appellant,
v.
WARDEN TYGER RIVER CORRECTIONAL INSTITUTION,
Respondent - Appellee,
and
STATE OF SOUTH CAROLINA,
Respondent.
Appeal from the United States District Court for the District of South Carolina, at
Orangeburg. Mary G. Lewis, District Judge. (5:17-cv-02011-MGL)
Submitted: December 19, 2017 Decided: December 22, 2017
Before SHEDD, AGEE, and DIAZ, Circuit Judges.
Dismissed by unpublished per curiam opinion.
Marlon Rivera, Appellant Pro Se.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Marlon Rivera seeks to appeal the district court’s order accepting the
recommendation of the magistrate judge and dismissing his 28 U.S.C. § 2254 (2012)
petition without prejudice 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) (2012). 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 Rivera has not
made the requisite showing. Accordingly, we deny a certificate of appealability, deny
Rivera’s motion for transcripts at government expense, 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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