Colwell v. Warden, Broad River Correctional Institution , 403 F. App'x 787 ( 2010 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 10-7025
JOHN EDWARD COLWELL,
Petitioner - Appellant,
v.
WARDEN, BROAD RIVER CORRECTIONAL INSTITUTION,
Respondent - Appellee.
Appeal from the United States District Court for the District of
South Carolina, at Rock Hill. Henry M. Herlong, Jr., Senior
District Judge. (0:10-cv-01100-HMH)
Submitted: November 18, 2010 Decided: December 1, 2010
Before SHEDD and AGEE, Circuit Judges, and HAMILTON, Senior
Circuit Judge.
Dismissed by unpublished per curiam opinion.
John Edward Colwell, Appellant Pro Se.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
John Edward Colwell seeks to appeal the district
court’s order accepting the recommendation of the magistrate
judge and denying his Fed. R. Civ. P. 60(b) motion for
reconsideration of the district court’s order denying relief on
his 28 U.S.C. § 2254 (2006) petition. The order is not
appealable unless a circuit justice or judge issues a
certificate of appealability. 28 U.S.C. § 2253(c)(1) (2006);
Reid v. Angelone, 369 F.3d 363, 369 (4th Cir. 2004).
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) (2006). 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 Colwell has not made the requisite showing.
Accordingly, we deny a certificate of appealability, deny the
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pending motion for a new trial, 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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