Mitchell v. Rushton

Filing 920090224

Opinion

UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT

No. 07-6552

MEKIEL MITCHELL, Petitioner ­ Appellant, v. COLIE RUSHTON, Warden of McCormick Correctional Institution; HENRY MCMASTER, Attorney General of the State of South Carolina, Respondents - Appellees.

Appeal from the United States District Court for the District of South Carolina, at Columbia. Terry L. Wooten, District Judge. (3:06-cv-00054-TLW)

Submitted:

February 11, 2009

Decided:

February 24, 2009

Before MICHAEL, TRAXLER, and DUNCAN, Circuit Judges.

Dismissed by unpublished per curiam opinion.

John Dewey Elliott; John Christopher Mills, Columbia, South Carolina, for Appellant. Donald John Zelenka, Deputy Assistant Attorney General, Columbia, South Carolina, for Appellees.

Unpublished opinions are not binding precedent in this circuit.

PER CURIAM: Mekiel Mitchell 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 (2006) petition. The

order is not appealable unless a circuit justice or judge issues a certificate of appealability. A certificate of appealability 28 U.S.C. § 2253(c)(1) (2006). will not issue absent "a

substantial showing of the denial of a constitutional right." 28 U.S.C. by § 2253(c)(2) (2006). that A prisoner satisfies would this find

standard

demonstrating

reasonable

jurists

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, 483-84 (2000); Rose v. Lee, 252 F.3d 676, 683-84 (4th Cir. 2001). conclude that We have independently reviewed the record and has not made the requisite showing.

Mitchell

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

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