David Jones v. Michael McCall

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UNPUBLISHED PER CURIAM OPINION filed. Originating case number: 2:09-cv-01857-MBS Copies to all parties and the district court/agency. [998475547] [10-7062]

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David Jones v. Michael McCall Doc. 0 Case: 10-7062 Document: 6 Date Filed: 12/01/2010 Page: 1 UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 10-7062 DAVID ALLEN JONES, Petitioner Appellant, v. MICHAEL MCCALL, Warden, Perry CI, Respondent Appellee. Appeal from the United States District Court for the District of South Carolina, at Charleston. Margaret B. Seymour, District Judge. (2:09-cv-01857-MBS) Submitted: November 9, 2010 Decided: December 1, 2010 Before KING, SHEDD, and DAVIS, Circuit Judges. Dismissed by unpublished per curiam opinion. David Allen Jones, Appellant Pro Se. Samuel Creighton Waters, Assistant Attorney General, Donald John Zelenka, Deputy Assistant Attorney General, Columbia, South Carolina, for Appellee. Unpublished opinions are not binding precedent in this circuit. Dockets.Justia.com Case: 10-7062 Document: 6 Date Filed: 12/01/2010 Page: 2 PER CURIAM: David Allen Jones seeks to appeal the district court's order accepting the recommendation of the magistrate judge and denying relief on his 28 U.S.C. 2254 (2006) petition. The order is not appealable unless a circuit justice or judge issues a certificate of appealability. A certificate of appealability 28 U.S.C. 2253(c)(1) (2006). will not issue absent "a substantial showing of the denial of a constitutional right." 28 U.S.C. 2253(c)(2) (2006). relief on the merits, that a When the district court denies satisfies would this standard that claims 473, by the is 484 prisoner demonstrating district debatable reasonable of v. jurists the find court's or assessment Slack constitutional 529 U.S. wrong. McDaniel, (2000); see Miller-El v. 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. at 484-85. that We have independently has not made reviewed the Slack, 529 U.S. the record and conclude Jones 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: 10-7062 Document: 6 Date Filed: 12/01/2010 Page: 3 before the court and argument would not aid the decisional process. DISMISSED 3

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