Gary Wise v. Warden, Turbeville Correctiona

Filing

UNPUBLISHED PER CURIAM OPINION filed. Originating case number: 6:09-cv-01361-HFF Copies to all parties and the district court/agency. [998414115] [10-6565]

Gary Wise v. Warden, Turbeville Correctiona

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Case: 10-6565 Document: 6

Date Filed: 08/30/2010

Page: 1

UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 10-6565 GARY LEGRANDE WISE, a/k/a Gary L. Wise, Petitioner ­ Appellant, v. WARDEN, TURBEVILLE CORRECTIONAL INSTITUTION, Respondent ­ Appellee.

Appeal from the United States District Court for the District of South Carolina, at Greenville. Henry F. Floyd, District Judge. (6:09-cv-01361-HFF) Submitted: August 19, 2010 Decided: August 30, 2010

Before MOTZ, GREGORY, and AGEE, Circuit Judges. Dismissed by unpublished per curiam opinion. Gary Legrande Wise, Appellant Pro Se. Donald John Zelenka, Deputy Assistant Attorney General, Columbia, South Carolina, for Appellee. Unpublished opinions are not binding precedent in this circuit.

Dockets.Justia.com

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PER CURIAM: Gary Legrande Wise seeks to appeal the district

court's order adopting the magistrate judge's recommendation to grant § 2254 Respondent's (2006) summary judgment motion him on a his 28 U.S.C. of

petition,

and

denying

certificate

appealability.

The order is not appealable unless a circuit See

justice or judge issues a certificate of appealability. 28 U.S.C. § 2253(c)(1) (2006).

A certificate of appealability

will not issue absent "a substantial showing of the denial of a 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. and conclude that Slack,

We have independently reviewed the record Wise 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

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Date Filed: 08/30/2010

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before

the

court

and

argument

would

not

aid

the

decisional

process. DISMISSED

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