Hardy v. Riley

Filing 920071221

Opinion

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UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 07-7422 CLARENCE HARDY, Petitioner - Appellant, versus TIM RILEY; HENRY MCMASTER, Attorney General of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 Florence. Henry F. Floyd, District Judge. (4:06-cv-01570-HFF) Submitted: December 13, 2007 Decided: December 21, 2007 Before NIEMEYER, MOTZ, and SHEDD, Circuit Judges. Dismissed by unpublished per curiam opinion. Clarence Hardy, Appellant Pro Se. Melody Jane Brown, Donald John Zelenka, OFFICE OF THE ATTORNEY GENERAL OF SOUTH CAROLINA, Columbia, South Carolina, for Appellees. Unpublished opinions are not binding precedent in this circuit. PER CURIAM: Clarence Hardy 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." 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 Hardy has not made the requisite showing. Accordingly, we deny Hardy's motion to proceed in forma pauperis and 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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