Tony Wilson v. State of South Carolina

Filing 920100210

UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT

No. 09-6947

TONY TYRONE WILSON, Petitioner - Appellant, v. STATE OF SOUTH CAROLINA; WARDEN, BROAD RIVER CORRECTIONAL INSTITUTION, Respondents - Appellees.

Appeal from the United States District Court for the District of South Carolina, at Columbia. Sol Blatt, Jr., Senior District Judge. (3:09-cv-00303-SB)

Submitted:

January 27, 2010

Decided:

February 10, 2010

Before GREGORY, SHEDD, and DUNCAN, Circuit Judges.

Dismissed by unpublished per curiam opinion.

Tony Tyrone Wilson, Appellant Pro Se.

Unpublished opinions are not binding precedent in this circuit.

PER CURIAM: Tony court's order Tyrone adopting Wilson the seeks to appeal of the the district magistrate

recommendation

judge and dismissing his 28 U.S.C. § 2254 (2006) petition as an unauthorized, successive petition. 1 unless a circuit 28 justice U.S.C. or § The order is not appealable issues a certificate see Jones of v.

judge

appealability.

2253(c)(1)

(2006);

Braxton, 392 F.3d 683, 685, 691 (4th Cir. 2004) (certificate of appealability required to appeal dismissal of habeas petition as successive and unauthorized). A certificate of appealability

will not issue absent "a substantial showing of the denial of a constitutional prisoner reasonable right." 28 U.S.C. standard find the that § 2253(c)(2) by any (2000). A that the or

satisfies jurists

this would by

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 Wilson has This appeal is back from a limited remand to the district court, in which the district court found good cause to extend the time period in which Wilson could file his notice of appeal. Fed. R. App. P. 4(a)(1), (5). Therefore, the appeal is timely.
1

2

not

made

the of

requisite

showing. 2 and

Accordingly, dismiss the the

we

deny

a We

certificate dispense

appealability oral argument

appeal. and

with

because

facts

legal

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

DISMISSED

On appeal, Wilson alleges he never received the February 25, 2009 report and recommendation of the magistrate judge. This assertion is supported by the record, and the district court on limited remand voiced its willingness to permit Wilson to file objections to the magistrate judge's report should this court remand the case for that purpose. However, because the record makes clear that Wilson's petition is an unauthorized successive habeas petition, over which the district court has no jurisdiction, we decline to remand the case for that purpose.

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