Lee Ellerbe v. Warden Stevenson

Filing

UNPUBLISHED PER CURIAM OPINION filed. Originating case number: 6:12-cv-01064-GRA. Copies to all parties and the district court/agency. [999115295]. Mailed to: Lee Ellerbe. [13-6241]

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UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT

No. 13-6241

LEE EDWARD ELLERBE,
Petitioner - Appellant,
v.
WARDEN STEVENSON,
Respondent - Appellee.

Appeal from the United States District Court for the District of
South Carolina, at Greenville.
G. Ross Anderson, Jr., Senior
District Judge. (6:12-cv-01064-GRA)

Submitted:

April 29, 2013

Decided:

May 24, 2013

Before NIEMEYER, DUNCAN, and WYNN, Circuit Judges.

Dismissed by unpublished per curiam opinion.

Lee Edward Ellerbe, Appellant Pro Se.
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Unpublished opinions are not binding precedent in this circuit.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:
Lee
court’s
judge

order
and

petition.
or

Edward

judge

Ellerbe

accepting

denying

relief

to

appeal

recommendation

on

his

28

of

U.S.C.

the
the
§

district
magistrate

2254

(2006)

The order is not appealable unless a circuit justice
issues

a

certificate

§ 2253(c)(1)(A) (2006).
issue

the

seeks

absent

“a

appealability.

28

U.S.C.

A certificate of appealability will not

substantial

constitutional right.”

of

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 Ellerbe 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

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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