Marlon Rivera v. Scott Lewis , 678 F. App'x 139 ( 2017 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 17-6066
MARLON RIVERA,
Petitioner - Appellant,
v.
SCOTT LEWIS, Warden (PCI),
Respondent - Appellee.
Appeal from the United States District Court for the District of
South Carolina, at Orangeburg. Mary G. Lewis, District Judge.
(5:16-cv-00837-MGL)
Submitted: February 23, 2017 Decided: February 28, 2017
Before SHEDD and DIAZ, Circuit Judges, and DAVIS, Senior Circuit
Judge.
Dismissed by unpublished per curiam opinion.
Marlon Rivera, Appellant Pro Se. Alphonso Simon, Jr., Assistant
Attorney General, Donald John Zelenka, Senior Assistant Attorney
General, Columbia, South Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Marlon Rivera 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 (2012) petition. The order is
not appealable unless a circuit justice or judge issues a
certificate of appealability. 28 U.S.C. § 2253(c)(1)(A) (2012).
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) (2012). 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
Rivera has not made the requisite showing. Accordingly, we deny
a certificate of appealability and dismiss the appeal. We deny
Rivera’s motions for appointment of counsel and for a transcript
at government expense. We dispense with oral argument because
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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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