Spencer Utsey v. Michael McCall

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 14-7544
SPENCER UTSEY,
Petitioner – Appellant,
v.
MICHAEL MCCALL, Warden of Lee Correctional Institution,
Respondent – Appellee,
and
STATE OF SOUTH CAROLINA,
Respondent.
Appeal from the United States District Court for the District of
South Carolina, at Anderson. J. Michelle Childs, District
Judge. (8:13-cv-01433-JMC)
Submitted: March 20, 2015 Decided: March 31, 2015
Before SHEDD, FLOYD, and THACKER, Circuit Judges.
Dismissed by unpublished per curiam opinion.
Spencer Utsey, Appellant Pro Se. Donald John Zelenka, Senior
Assistant Attorney General, Columbia, South Carolina, for
Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Spencer Utsey seeks to appeal the district court’s order
accepting the recommendation of the magistrate judge and denying
his 28 U.S.C. § 2254 (2012) petition as untimely filed. 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
Utsey 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
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contentions are adequately presented in the materials before
this court and argument would not aid the decisional process.
DISMISSED
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