Robert Mitchell v. Warden of Broad River

Filing

UNPUBLISHED PER CURIAM OPINION filed. Motion disposition in opinion--granting Motion for rehearing and rehearing en banc [999175303-2]; denying Motion certificate of appealability (Local Rule 22(a)) [999161755-2] Originating case number: 4:13-cv-00470-CMC Copies to all parties and the district court/agency. [999190051]. Mailed to: Robert Mitchell. [13-6816]

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ON REHEARING
UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT

No. 13-6816

ROBERT L. MITCHELL, a/k/a Robert Lee Mitchell, a/k/a Robert
Mitchell,
Petitioner - Appellant,
v.
WARDEN OF BROAD RIVER CORRECTIONAL INSTITUTION,
Respondent - Appellee,
and
BILL BYARS, Director SC Dept of Corrections,
Respondent.

Appeal from the United States District Court for the District of
South Carolina, at Florence.
Cameron McGowan Currie, District
Judge. (4:13-cv-00470-CMC)

Submitted:

July 25, 2013

Decided:

September 10, 2013

Before GREGORY, DAVIS, and THACKER, Circuit Judges.

Dismissed by unpublished per curiam opinion.

Robert L. Mitchell, Appellant Pro Se.

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Unpublished opinions are not binding precedent in this circuit.

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PER CURIAM:
Robert
court’s

order

L.

Mitchell

accepting

the

seeks

to

appeal

recommendation

of

the
the

district
magistrate

judge and dismissing as successive his 28 U.S.C. § 2254 (2006)
petition.

We

appealability

previously

and

dismissed

denied
his

Mitchell

appeal

on

a

certificate

the

basis

that

of
he

waived appellate review of the district court’s order by failing
to

file

Mitchell

objections
has

now

to
filed

rehearing en banc.

the
a

magistrate
petition

judge’s

for

panel

recommendation.
rehearing

and

Upon review of the petition, we grant panel

rehearing, deny a certificate of appealability, and dismiss the
appeal.
The district court’s order is not appealable unless a
circuit justice or judge issues a certificate of appealability.
28 U.S.C.

§ 2253(c)(1)(A)

(2006).

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).

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

constitutional claims is debatable or wrong.

assessment

of

the

Slack v. McDaniel,

529 U.S. 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
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dispositive
petition

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procedural

states

a

constitutional right.

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ruling

is

debatable

debatable,

claim

of

and

the

that

denial

the

of

a

Slack, 529 U.S. at 484-85.

We have independently reviewed the record and conclude
that Mitchell has not made the requisite showing.

Accordingly,

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

dispense

contentions

with
are

oral

argument

adequately

because

presented

in

the

facts

and

the

materials

legal
before

this court and argument would not aid the decisional process.

DISMISSED

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