Robert Graham, Jr. v. State Attorney General ( 2013 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 13-6048
ROBERT GRAHAM, JR.,
Petitioner - Appellant,
v.
STATE ATTORNEY GENERAL; LEROY CARTLEDGE,
Respondents - Appellees.
Appeal from the United States District Court for the District of
South Carolina, at Greenville. Cameron McGowan Currie, District
Judge. (6:12-cv-02699-CMC)
Submitted: March 26, 2013 Decided: March 29, 2013
Before DUNCAN, FLOYD, and THACKER, Circuit Judges.
Dismissed by unpublished per curiam opinion.
Robert Graham, Jr., Appellant Pro Se.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Robert Graham, Jr., a state prisoner, seeks to appeal
the district court’s order accepting the recommendations of the
magistrate judge to construe his 28 U.S.C.A. § 2241 (West 2006 &
Supp. 2012) petition as a 28 U.S.C. § 2254 (2006) petition and
to dismiss the petition as successive and unauthorized. 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 Graham has not made the requisite showing. Accordingly, we
deny Graham’s request for appointment of counsel, deny a
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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
this court and argument would not aid the decisional process.
DISMISSED
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