Sumbry v. Indiana State Prison

Filing 920061024

Opinion

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UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 06-7426 LARRIANTE SUMBRY, Petitioner - Appellant, versus INDIANA STATE GOVERNOR, PRISON; ED G. BUSS; INDIANA Respondents - Appellees. Appeal from the United States District Court for the Southern District of West Virginia, at Charleston. John T. Copenhaver, District Judge. (2:06-cv-00308) Submitted: October 17, 2006 Decided: October 24, 2006 Before NIEMEYER, KING, and DUNCAN, Circuit Judges. Dismissed by unpublished per curiam opinion. Larriante Sumbry, Appellant Pro Se. Unpublished opinions are not binding precedent in this circuit. See Local Rule 36(c). PER CURIAM: Larriante Sumbry 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 (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." 2253(c)(2) (2000). that A prisoner satisfies would this 28 U.S.C. standard that by any demonstrating reasonable jurists find 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 Sumbry has not made the requisite showing. Accordingly, we deny Sumbry's "request to convert common law appeal into an exclusive remedy tort," 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 -

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