Franklin Benjamin v. State of South Carolina

Filing 920081121

Opinion

UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT

No. 08-7705

FRANKLIN ANTONIO BENJAMIN, Petitioner - Appellant, v. STATE OF SOUTH CAROLINA; ANTHONY PADULA, Warden of Lee Correctional Institution; HENRY MCMASTER, Attorney General, Respondents - Appellees.

Appeal from the United States District Court for the District of South Carolina, at Rock Hill. Terry L. Wooten, District Judge. (0:07-cv-02442-TLW)

Submitted:

November 13, 2008

Decided:

November 21, 2008

Before WILKINSON, NIEMEYER, and SHEDD, Circuit Judges.

Dismissed by unpublished per curiam opinion.

Franklin Antonio Benjamin, Appellant Pro Se. William Edgar Salter, III, Assistant Attorney General, Donald John Zelenka, Deputy Assistant Attorney General, Columbia, South Carolina, for Appellees.

Unpublished opinions are not binding precedent in this circuit.

PER CURIAM: Franklin Antonio Benjamin seeks to appeal the district court's judge order and accepting the recommendation his 28 of the § magistrate (2000)

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 Benjamin has not made the of requisite showing. and Accordingly, dismiss the the we deny a We legal

certificate dispense

appealability oral argument

appeal. and

with

because

facts

contentions are adequately presented in the materials before the court and argument would not aid the decisional process.

DISMISSED 2