Berry v. State of South Carolina , 356 F. App'x 666 ( 2009 )


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  •                               UNPUBLISHED
    UNITED STATES COURT OF APPEALS
    FOR THE FOURTH CIRCUIT
    No. 09-6399
    ROBERT FRANCIS BERRY,
    Petitioner – Appellant,
    v.
    STATE OF SOUTH CAROLINA; KEVIN B. CARTLEDGE, Acting Warden
    of McCormick Correctional Institution,
    Respondents – Appellees.
    Appeal from the United States District Court for the District of
    South Carolina, at Beaufort.    Henry F. Floyd, District Judge.
    (9:08-cv-00754-HFF)
    Submitted:    December 15, 2009             Decided:   December 17, 2009
    Before MICHAEL and DUNCAN, Circuit Judges, and HAMILTON, Senior
    Circuit Judge.
    Dismissed by unpublished per curiam opinion.
    Robert Francis Berry, Appellant Pro Se.     Donald John Zelenka,
    Deputy Assistant Attorney General, Columbia, South Carolina, for
    Appellees.
    Unpublished opinions are not binding precedent in this circuit.
    PER CURIAM:
    Robert       Francis       Berry       seeks     to    appeal      the     district
    court’s    order       accepting        the     recommendation          of    the    magistrate
    judge     and    denying         relief     on    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).           A
    prisoner        satisfies          this        standard         by    demonstrating               that
    reasonable       jurists         would     find       that      any    assessment            of     the
    constitutional         claims      by     the     district       court    is      debatable          or
    wrong and that any dispositive procedural ruling by the district
    court is likewise debatable.                      Miller-El v. Cockrell, 
    537 U.S. 322
    , 336-38 (2003); Slack v. McDaniel, 
    529 U.S. 473
    , 484 (2000);
    Rose v. Lee, 
    252 F.3d 676
    , 683-84 (4th Cir. 2001).                                           We have
    independently reviewed the record and conclude that Berry 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 before the
    court and argument would not aid the decisional process.
    DISMISSED
    2
    

Document Info

Docket Number: 09-6399

Citation Numbers: 356 F. App'x 666

Judges: Michael, Duncan, Hamilton

Filed Date: 12/17/2009

Precedential Status: Non-Precedential

Modified Date: 11/5/2024