Lowery v. SC Department of Probation Parole & Pardon Services , 461 F. App'x 325 ( 2012 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 11-7349
THOMAS LOWERY,
Petitioner - Appellant,
v.
SC DEPARTMENT OF PROBATION PAROLE AND PARDON SERVICES;
CECILIA REYNOLDS, Warden Ker. CI,
Respondents - Appellees.
Appeal from the United States District Court for the District of
South Carolina, at Columbia. Terry L. Wooten, District Judge.
(3:10-cv-03011-TLW)
Submitted: January 9, 2012 Decided: January 11, 2012
Before WILKINSON and SHEDD, Circuit Judges, and HAMILTON, Senior
Circuit Judge.
Dismissed by unpublished per curiam opinion.
Thomas Lowery, Appellant Pro Se. Tommy Evans, Jr., SOUTH
CAROLINA DEPARTMENT OF PROBATION, PAROLE & PARDON SERVICES,
Columbia, South Carolina, for Appellees.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Thomas Lowery, a state prisoner, seeks to appeal the
district court’s order accepting the recommendation of the
magistrate judge and denying relief on his 28 U.S.C.A. § 2241(West 2006 & Supp. 2011) 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).
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 Lowery has
not made the requisite showing. Accordingly, we deny Lowery’s
motion for 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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