Hart v. Warden of Broad River Correctional Institution ( 2010 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 10-6906
JOHN H. HART,
Petitioner – Appellant,
v.
WARDEN OF BROAD RIVER CORRECTIONAL INSTITUTION,
Respondent – Appellee.
Appeal from the United States District Court for the District of
South Carolina, at Rock Hill. Henry M. Herlong, Jr., Senior
District Judge. (0:09-cv-00997-HMH)
Submitted: September 23, 2010 Decided: October 14, 2010
Before GREGORY, DUNCAN, and AGEE, Circuit Judges.
Dismissed by unpublished per curiam opinion.
John H. Hart, Appellant Pro Se. Donald John Zelenka, Deputy
Assistant Attorney General, Melody Jane Brown, Assistant
Attorney General, Columbia, South Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
John H. Hart seeks to appeal the district court’s
order accepting the recommendation of the magistrate judge and
dismissing as untimely his 28 U.S.C. § 2254 (2006) petition.
The order is not appealable unless a circuit justice or judge
issues a certificate of appealability. 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 Hart 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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