Lesane v. Rushton , 53 F. App'x 305 ( 2002 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 02-7268
MICHAEL B. LESANE,
Petitioner - Appellant,
versus
COLIE RUSHTON, Warden of McCormick
Correctional Institution; CHARLES CONDON,
Attorney General of the State of South
Carolina,
Respondents - Appellees.
Appeal from the United States District Court for the District of
South Carolina, at Anderson. Dennis W. Shedd, District Judge.
(CA-02-146)
Submitted: December 9, 2002 Decided: December 24, 2002
Before NIEMEYER, LUTTIG, and TRAXLER, Circuit Judges.
Dismissed by unpublished per curiam opinion.
Michael B. Lesane, Appellant Pro Se. Derrick K. McFarland, OFFICE
OF THE ATTORNEY GENERAL OF SOUTH CAROLINA, Columbia, South
Carolina, for Appellees.
Unpublished opinions are not binding precedent in this circuit.
See Local Rule 36(c).
PER CURIAM:
Michael B. Lesane seeks to appeal the district court’s order
adopting the magistrate judge’s report and dismissing for failure
to exhaust state remedies his petition filed under 28 U.S.C. § 2254(2000). An appeal may not be taken from the final order in a habeas
corpus proceeding unless a circuit justice or judge issues a
certificate of appealability. 28 U.S.C. § 2253(c)(1) (2000). When,
as here, a district court dismisses a § 2254 petition solely on
procedural grounds, a certificate of appealability will not issue
unless the petitioner can demonstrate both “(1) ‘that jurists of
reason would find it debatable whether the petition states a valid
claim of the denial of a constitutional right’ and (2) ‘that
jurists of reason would find it debatable whether the district
court was correct in its procedural ruling.’” Rose v. Lee, 252 F.
3d 676, 684 (4th Cir.) (quoting Slack v. McDaniel, 529 U.S. 473,
484 (2000)), cert. denied, 122 S.Ct. 318 (2001). We have reviewed
the record and conclude for the reasons stated by the district
court that Lesane has not made the requisite showing. See Lesane v.
Rushton, No. CA-02-146 (D.S.C. Aug. 5, 2002). 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
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