Smith v. Warden, Broad River Correctional Institution ( 2010 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 10-6565
GARY LEGRANDE WISE, a/k/a Gary L. Wise,
Petitioner – Appellant,
v.
WARDEN, TURBEVILLE CORRECTIONAL INSTITUTION,
Respondent – Appellee.
Appeal from the United States District Court for the District of
South Carolina, at Greenville. Henry F. Floyd, District Judge.
(6:09-cv-01361-HFF)
Submitted: August 19, 2010 Decided: August 30, 2010
Before MOTZ, GREGORY, and AGEE, Circuit Judges.
Dismissed by unpublished per curiam opinion.
Gary Legrande Wise, Appellant Pro Se. Donald John Zelenka,
Deputy Assistant Attorney General, Columbia, South Carolina, for
Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Gary Legrande Wise seeks to appeal the district
court’s order adopting the magistrate judge’s recommendation to
grant Respondent’s summary judgment motion on his 28 U.S.C.
§ 2254 (2006) petition, and denying him a certificate of
appealability. The order is not appealable unless a circuit
justice or judge issues a certificate of appealability. See
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). 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 Wise 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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