Richardson v. State of South Carolina ( 2011 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 10-7505
ERNEST RICHARDSON, JR.,
Plaintiff – Appellant,
v.
STATE OF SOUTH CAROLINA,
Respondent – Appellee.
Appeal from the United States District Court for the District of
South Carolina, at Columbia. Solomon Blatt, Jr., Senior
District Judge. (3:09-cv-00160-SB)
Submitted: April 28, 2011 Decided: May 2, 2011
Before DAVIS, KEENAN, and WYNN, Circuit Judges.
Dismissed by unpublished per curiam opinion.
Ernest Richardson, Jr., Appellant Pro Se. Donald John Zelenka,
Deputy Assistant Attorney General, Alphonso Simon, Jr.,
Assistant Attorney General, Columbia, South Carolina, for
Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Ernest Richardson, Jr., seeks to appeal the district
court’s order accepting the recommendation of the magistrate
judge and dismissing Richardson’s 28 U.S.C. § 2254 (2006)
petition as untimely filed, and a subsequent order denying
reconsideration. The orders are 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 Richardson has not made the requisite showing.
Accordingly, we deny a certificate of appealability, deny leave
to proceed in forma pauperis, and dismiss the appeal. We
dispense with oral argument because the facts and legal
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contentions are adequately presented in the materials before the
court and argument would not aid the decisional process.
DISMISSED
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