Evans v. Smith , 202 F. App'x 606 ( 2006 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 06-6747
GREGORY THEOPHILUS EVANS,
Petitioner - Appellant,
versus
RAYMOND SMITH, Superintendent,
Respondent - Appellee.
Appeal from the United States District Court for the Middle
District of North Carolina, at Durham. James A. Beaty, Jr.,
District Judge. (1:05-cv-00663-WWD)
Submitted: September 28, 2006 Decided: October 10, 2006
Before NIEMEYER, TRAXLER, and SHEDD, Circuit Judges.
Dismissed by unpublished per curiam opinion.
Gregory Theophilus Evans, Appellant Pro Se. Mary Carla Hollis,
NORTH CAROLINA DEPARTMENT OF JUSTICE, Raleigh, North Carolina, for
Appellee.
Unpublished opinions are not binding precedent in this circuit.
See Local Rule 36(c).
PER CURIAM:
Gregory Theophilus Evans 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 (2000) petition. The
order is not appealable unless a circuit justice or judge issues a
certificate of appealability. 28 U.S.C. § 2253(c)(1) (2000). 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) (2000). 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 Evans 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 contentions are adequately presented in the materials before
the court and argument would not aid the decisional process.
DISMISSED
- 2 -