Keith Graham v. Henry McMaster

Filing

UNPUBLISHED PER CURIAM OPINION filed. Originating case number: 2:08-cv-03603-HFF Copies to all parties and the district court/agency. [998399696] [09-7291]

Case: 09-7291

Document: 13

Date Filed: 08/10/2010

Page: 1

UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 09-7291 KEITH BRADLEY GRAHAM, Petitioner ­ Appellant, v. HENRY DARGAN MCMASTER, Attorney General of the State South Carolina; WARDEN LEE CORRECTIONAL INSTITUTION, Respondents ­ Appellees. of

Appeal from the United States District Court for the District of South Carolina, at Charleston. Henry F. Floyd, District Judge. (2:08-cv-03603-HFF) Submitted: July 28, 2010 Decided: August 10, 2010

Before MOTZ, SHEDD, and DUNCAN, Circuit Judges. Dismissed by unpublished per curiam opinion. William Isaac Diggs, DIGGS, DIGGS & AXELROD, Myrtle Beach, South Carolina, for Appellant. Melody Jane Brown, Assistant Attorney General, Columbia, South Carolina, for Appellees. Unpublished opinions are not binding precedent in this circuit.

Case: 09-7291

Document: 13

Date Filed: 08/10/2010

Page: 2

PER CURIAM: Keith court's judge order and Bradley adopting Graham the seeks to appeal of the district

recommendation on his 28

the

magistrate (2006)

denying

relief

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) (2006). issue absent "a

A certificate of appealability will not showing U.S.C. of the denial of a the

substantial 28

constitutional

right."

§ 2253(c)(2).

When

district court denies relief on the merits, a prisoner satisfies this standard by demonstrating that reasonable jurists would

find that the district court's assessment of the constitutional claims is debatable or wrong. 484 (2000); see Miller-El v. Slack v. McDaniel, 529 U.S. 473, Cockrell, 537 U.S. 322, 336-38

(2003).

When the district court denies relief on procedural

grounds, the prisoner must demonstrate both that the dispositive procedural ruling is debatable, and that the petition states a debatable claim of the denial of a constitutional right. 529 U.S. at 484-85. Slack,

We have independently reviewed the record

and conclude that Graham has not made the requisite showing. 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

2

Case: 09-7291

Document: 13

Date Filed: 08/10/2010

Page: 3

before

the

court

and

argument

would

not

aid

the

decisional

process. DISMISSED

3