Richard Sims v. Colie Rushton

Filing 920081119

Opinion

UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT

No. 08-7087

RICHARD ALVIN SIMS, a/k/a Richard Sims, Petitioner ­ Appellant, v. COLIE RUSHTON, Warden, McCormick Correctional Institution, Respondent ­ Appellee.

Appeal from the United States District Court for the District of South Carolina, at Greenville. Henry M. Herlong, Jr., District Judge. (6:07-cv-01667-HMH)

Submitted:

November 13, 2008

Decided:

November 19, 2008

Before WILKINSON, NIEMEYER, and SHEDD, Circuit Judges.

Dismissed by unpublished per curiam opinion.

Richard Alvin Sims, Appellant Pro Se.

Unpublished opinions are not binding precedent in this circuit.

PER CURIAM: Richard court's judge order and Alvin Sims the seeks to appeal of the the § district magistrate (2000)

accepting

recommendation his 28

denying

relief

on

U.S.C.

2254

petition. or judge

The order is not appealable unless a circuit justice issues a certificate of appealability. 28 U.S.C.

§ 2253(c)(1) (2000). issue absent "a

A certificate of appealability will not showing U.S.C. standard find the that of the denial of a A that the or

substantial 28

constitutional prisoner reasonable

right." this would by

§ 2253(c)(2) by any

(2000).

satisfies jurists

demonstrating assessment is of

constitutional

claims

district

court

debatable

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 Sims has not made the requisite showing. Accordingly, we deny a certificate We dispense with oral

of appealability and dismiss the appeal.

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