Sayre v. McBride

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 06-7542
KENNY DREW SAYRE, SR.,
Petitioner - Appellant,
versus
THOMAS MCBRIDE, Warden,
Respondent - Appellee.
Appeal from the United States District Court for the Northern
District of West Virginia, at Wheeling. Frederick P. Stamp, Jr.,
District Judge. (5:05-cv-00183-FPS)
Submitted: November 21, 2006 Decided: December 4, 2006
Before TRAXLER and DUNCAN, Circuit Judges, and HAMILTON, Senior
Circuit Judge.
Dismissed by unpublished per curiam opinion.
Kenny Drew Sayre, Sr., Appellant Pro Se. Dawn Ellen Warfield,
OFFICE OF THE ATTORNEY GENERAL OF WEST VIRGINIA, Charleston, West
Virginia, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Kenny Drew Sayre, Sr., seeks to appeal the district
court’s order accepting the recommendation of the magistrate judge
and dismissing as successive Sayre’s 28 U.S.C. § 2254 (2000)
petition. The 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
any assessment of the constitutional claims by the district court
is debatable or wrong and that any dispositive procedural ruling by
the district court is likewise debatable. Miller-El v. Cockrell,
537 U.S. 322, 336-38 (2003); Slack v. McDaniel, 529 U.S. 473, 484
(2000); Rose v. Lee, 252 F.3d 676, 683-84 (4th Cir. 2001). We have
independently reviewed the record and conclude that Sayre 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
- 2 -