Stanford Tucker v. Michael McCall

Filing 920100525

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UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 09-8223 STANFORD BYRON TUCKER, Petitioner - Appellant, v. MICHAEL MCCALL, Warden; ATTORNEY GENERAL OF SOUTH CAROLINA, Respondents - Appellees. Appeal from the United States District Court for the District of South Carolina, at Beaufort. Henry M. Herlong, Jr., Senior District Judge. (9:09-cv-00151-HMH) Submitted: May 20, 2010 Decided: May 25, 2010 Before WILKINSON, NIEMEYER, and DAVIS, Circuit Judges. Dismissed by unpublished per curiam opinion. Stanford Byron Tucker, 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 Unpublished opinions are not binding precedent in this circuit.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: Stanford court's judge order and Byron Tucker the seeks to appeal of the district accepting recommendation his 28 the magistrate (2006) 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) (2006). issue absent "a A certificate of appealability will not showing of the denial of a substantial constitutional right." 28 U.S.C. 2253(c)(2) (2006). When the 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 Tucker 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 before the court and argument would not aid the decisional process. DISMISSED 3

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