Gathers v. Rushton , 158 F. App'x 494 ( 2005 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 05-7034
DEMETRIUS GATHERS,
Petitioner - Appellant,
versus
COLIE RUSHTON, Warden of McCormick
Correctional Institution; HENRY MCMASTER,
Attorney General of South Carolina,
Respondents - Appellees.
Appeal from the United States District Court for the District of
South Carolina, at Greenville. R. Bryan Harwell, District Judge.
(CA-04-399)
Submitted: November 30, 2005 Decided: December 28, 2005
Before LUTTIG, MICHAEL, and MOTZ, Circuit Judges.
Dismissed by unpublished per curiam opinion.
Demetrius Gathers, Appellant Pro Se. Donald John Zelenka, Chief
Deputy Attorney General, Columbia, South Carolina, for Appellees.
Unpublished opinions are not binding precedent in this circuit.
See Local Rule 36(c).
PER CURIAM:
Demetrius Gathers seeks to appeal the district court’s
order accepting the report and recommendation of a magistrate judge
and denying relief on 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). A
certificate of appealability will not issue for claims addressed by
a district court 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 Gathers 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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