Judex Desir v. Anthony Padula

Filing

UNPUBLISHED PER CURIAM OPINION filed.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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UNPUBLISHED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Dismissed by unpublished per curiam opinion.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Unpublished opinions are not binding precedent in this circuit.

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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

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contentions are adequately presented in the materials before the
court and argument would not aid the decisional process.
DISMISSED

3