Sayre v. McBride , 108 F. App'x 785 ( 2004 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 04-7120
KENNY DREW SAYRE, SR.,
Petitioner - Appellant,
versus
THOMAS MCBRIDE,
Respondent - Appellee.
Appeal from the United States District Court for the Northern
District of West Virginia, at Clarksburg. Irene M. Keeley, Chief
District Judge. (CA-03-3)
Submitted: August 26, 2004 Decided: September 3, 2004
Before WIDENER and SHEDD, Circuit Judges, and HAMILTON, Senior
Circuit Judge.
Dismissed by unpublished per curiam opinion.
Kenny Drew Sayre, Sr., Appellant Pro Se. Dawn Ellen Warfield,
OFFICE OF THE ATTORNEY GENERAL OF WEST VIRGINIA, Charleston, West
Virginia, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
See Local Rule 36(c).
PER CURIAM:
Kenny Drew Sayre, Sr., a state prisoner, seeks to appeal
the district court’s order accepting the magistrate judge’s
recommendation and denying relief on his petition filed under 28
U.S.C. § 2254 (2000), on the ground that Sayre did not meet the “in
custody” requirement of § 2254(a). 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 his constitutional claims are debatable and
that any dispositive procedural rulings by the district court are
also debatable or wrong. See Miller-El v. Cockrell, 537 U.S. 322,
336 (2003); Slack v. McDaniel, 529 U.S. 473, 484 (2000); Rose v.
Lee, 252 F.3d 676, 683 (4th Cir. 2001). We have independently
reviewed the record and conclude that Sayre has not made the
requisite showing. 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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