Tyrone Perry v. Michael McCall

Filing

UNPUBLISHED PER CURIAM OPINION filed. Motion disposition in opinion--denying for certificate of appealability Originating case number: 1:11-cv-02334-MBS Copies to all parties and the district court/agency. [999061029]. Mailed to: Tyrone Perry. [12-7678]

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UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT

No. 12-7678

TYRONE PERRY,
Petitioner – Appellant,
v.
MICHAEL MCCALL,
Respondent - Appellee.

Appeal from the United States District Court for the District of
South Carolina, at Aiken. Margaret B. Seymour, District Judge.
(1:11-cv-02334-MBS)

Submitted:

February 21, 2013

Before WILKINSON and
Senior Circuit Judge.

DUNCAN,

Decided:

Circuit

Judges,

March 12, 2013

and

HAMILTON,

Dismissed by unpublished per curiam opinion.

Tyrone Perry, Appellant Pro Se.
William Edgar Salter, III,
Assistant
Attorney
General,
Donald
John
Zelenka,
Senior
Assistant Attorney General, Columbia, South Carolina, for
Appellee.

Unpublished opinions are not binding precedent in this circuit.

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PER CURIAM:
Tyrone

Perry

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

(2006).

of

appealability.

28

U.S.C.

§ 2253(c)(1)(A)

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).
relief

on

the

demonstrating
district

merits,
that

court’s

debatable

or

a

prisoner

reasonable

assessment

wrong.

When the district court denies
satisfies

jurists

would

of

the

v.

McDaniel,

Slack

this

standard

find

constitutional
529

U.S.

by

that

the

claims

is

473,

484

(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.

Slack, 529 U.S.

at 484-85.
We have independently reviewed the record and conclude
that Perry 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

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are

adequately

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presented

in

the

materials

before

this court and argument would not aid the decisional process.

DISMISSED

3