Littlejohn v. Warden of Tyger River Correctional Institution , 491 F. App'x 448 ( 2012 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 12-7618
BERNARD MCFADDEN,
Petitioner - Appellant,
v.
WARDEN OF KERSHAW CORRECTIONAL INSTITUTION,
Respondent – Appellee,
and
THE STATE OF SOUTH CAROLINA; HENRY MCMASTER, South Carolina
Attorney General,
Respondents.
Appeal from the United States District Court for the District of
South Carolina, at Columbia. J. Michelle Childs, District
Judge. (3:11-cv-00959-JMC)
Submitted: December 20, 2012 Decided: December 26, 2012
Before SHEDD, KEENAN, and WYNN, Circuit Judges.
Dismissed by unpublished per curiam opinion.
Bernard McFadden, Appellant Pro Se.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Bernard McFadden seeks to appeal the district court’s
order accepting the recommendation of the magistrate judge and
dismissing his 28 U.S.C. § 2254 (2006) petition for failure to
exhaust state court remedies. 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)
(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 McFadden has not made the requisite showing. Accordingly,
we deny McFadden’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
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materials before this court and argument would not aid the
decisional process.
DISMISSED
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