Evon Frederick v. Warden McCabe

Filing

UNPUBLISHED PER CURIAM OPINION filed. Motion disposition in opinion--denying for certificate of appealability Originating case number: 9:11-cv-00211-RBH Copies to all parties and the district court/agency. [998844357]. Mailed to: Evon Frederick. [12-6039]

Appeal: 12-6039

Document: 8

Date Filed: 05/01/2012

Page: 1 of 3

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT

No. 12-6039

EVON FREDERICK,
Petitioner - Appellant,
v.
WARDEN MCCABE, et al,
Respondent - Appellee.

Appeal from the United States District Court for the District of
South Carolina, at Beaufort. R. Bryan Harwell, District Judge.
(9:11-cv-00211-RBH)

Submitted:

April 26, 2012

Decided:

May 1, 2012

Before GREGORY, AGEE, and WYNN, Circuit Judges.

Dismissed by unpublished per curiam opinion.

Evon Frederick, Appellant Pro Se.
Donald John Zelenka, Deputy
Assistant Attorney General, James Anthony Mabry, Assistant
Attorney General, Columbia, South Carolina, for Appellee.

Unpublished opinions are not binding precedent in this circuit.

Appeal: 12-6039

Document: 8

Date Filed: 05/01/2012

Page: 2 of 3

PER CURIAM:
Evon Frederick seeks to appeal the district court’s
order accepting the recommendation of the magistrate judge and
dismissing as untimely his 28 U.S.C. § 2254 (2006) petition.
The order is not appealable unless a circuit justice or judge
issues

a

certificate

§ 2253(c)(1)(A) (2006).
issue

absent

“a

of

appealability.

U.S.C.

A certificate of appealability will not

substantial

constitutional right.”

28

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 Frederick has not made the requisite showing.

Accordingly,

we deny a certificate of appealability and dismiss the appeal.
We

dispense

with

oral

argument

2

because

the

facts

and

legal

Appeal: 12-6039

Document: 8

Date Filed: 05/01/2012

Page: 3 of 3

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

DISMISSED

3