Lester v. South Carolina

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 04-7591
STEVEN LESTER,
Petitioner - Appellant,
versus
STATE OF SOUTH CAROLINA; ATTORNEY GENERAL OF
SOUTH CAROLINA,
Respondents - Appellees.
Appeal from the United States District Court for the District of
South Carolina, at Florence. R. Bryan Harwell, District Judge.
(CA-03-15-4-27)
Submitted: January 28, 2005 Decided: February 23, 2005
Before LUTTIG, MICHAEL, and TRAXLER, Circuit Judges.
Dismissed by unpublished per curiam opinion.
Steven Lester, Appellant Pro Se.
Unpublished opinions are not binding precedent in this circuit.
See Local Rule 36(c).
PER CURIAM:
Steven Lester seeks to appeal the district court’s order
accepting the recommendation of the magistrate judge and denying
relief on his petition filed under 28 U.S.C. § 2254 (2000). The
district court dismissed the motion without prejudice for failure
to exhaust state court remedies. This 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 the district court’s assessment of his
constitutional claims is 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).
The record demonstrates that the district court lacked
jurisdiction to consider the motion as Lester failed to obtain
prefiling authorization from this court to file it.* Lester’s
*
Another district judge had dismissed Lester’s earlier § 2254
petition as barred by the statute of limitations, and this court
denied a certificate of appealability and dismissed the appeal.
Lester v. South Carolina, No. 02-7382, 2003 WL 257518 (4th Cir.
Feb. 7, 2003) (unpublished). The district judge’s order in that
case expressly stated that the petition was denied with prejudice,
but the judgment stated that dismissal was without prejudice. In
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failure to obtain prefiling authorization to file the § 2254
petition in the first instance precludes granting a certificate of
appealability.
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
light of the reasoning underlying the district court’s dismissal,
we conclude that the earlier action was dismissed with prejudice.
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