Judex Desir v. Anthony Padula

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UNPUBLISHED PER CURIAM OPINION filed. Originating case number: 8:10-cv-00488-TMC Copies to all parties and the district court/agency. [998846387]. Mailed to: Desir. [11-7572]

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Appeal: 11-7572 Doc: 10 Filed: 05/03/2012 Pg: 1 of 3 UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 11-7572 JUDEX DESIR, Petitioner – Appellant, v. WARDEN ANTHONY PADULA, Respondent - Appellee. Appeal from the United States District Court for the District of South Carolina, at Anderson. Timothy M. Cain, District Judge. (8:10-cv-00488-TMC) Submitted: April 26, 2012 Decided: May 3, 2012 Before WILKINSON, NIEMEYER, and SHEDD, Circuit Judges. Dismissed by unpublished per curiam opinion. Judex Desir, Appellant Pro Se. Melody Jane Brown, Assistant Attorney General, Donald John Zelenka, Deputy Assistant Attorney General, Columbia, South Carolina, for Appellee. Unpublished opinions are not binding precedent in this circuit. Appeal: 11-7572 Doc: 10 Filed: 05/03/2012 Pg: 2 of 3 PER CURIAM: Judex Desir seeks to appeal the district court’s orders accepting the recommendation of the magistrate judge and denying relief on his 28 U.S.C. § 2254 (2006) petition, and denying Desir’s motion to alter or amend the judgment. orders are issues not a appealable certificate § 2253(c)(1)(A) (2006). issue absent “a unless of circuit justice appealability. or 28 judge U.S.C. A certificate of appealability will not substantial constitutional right.” a The showing of the denial 28 U.S.C. § 2253(c)(2) (2006). of a 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. Slack v. McDaniel, 529 U.S. 473, 484 Cockrell, (2000); (2003). see Miller-El v. 537 U.S. 322, 336-38 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. Slack, 529 U.S. at 484-85. We have independently reviewed the record and conclude that Desir has not made the requisite showing. Accordingly, we deny a certificate of appealability and dismiss the appeal. dispense with oral argument because 2 the facts and We legal Appeal: 11-7572 Doc: 10 Filed: 05/03/2012 Pg: 3 of 3 contentions are adequately presented in the materials before the court and argument would not aid the decisional process. DISMISSED 3

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