Dan Temple, Jr. v. State of South Carolina

Filing

UNPUBLISHED PER CURIAM OPINION filed. Motion disposition in opinion--denying Motion for transcript at government expense [999259923-2]; denying Motion to proceed in forma pauperis (FRAP 24) [999259893-2], denying Motion to proceed in forma pauperis (FRAP 24) [999248877-2] Originating case number: 9:13-cv-02207-TLW Copies to all parties and the district court/agency. [999327134]. Mailed to: appellant. [13-7904]

Appeal: 13-7904

Doc: 17

Filed: 04/01/2014

Pg: 1 of 3

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT

No. 13-7904

DAN TEMPLE, JR.,
Petitioner - Appellant,
v.
STATE OF SOUTH CAROLINA,
Respondent - Appellee.

Appeal from the United States District Court for the District of
South Carolina, at Beaufort.
Terry L. Wooten, Chief District
Judge. (9:13-cv-02207-TLW)

Submitted:

March 27, 2014

Before MOTZ, Circuit
Circuit Judges.

Judge,

Decided:

and

HAMILTON

and

April 1, 2014

DAVIS,

Senior

Dismissed by unpublished per curiam opinion.

Daniel Temple, Jr., Appellant Pro Se.

Unpublished opinions are not binding precedent in this circuit.

Appeal: 13-7904

Doc: 17

Filed: 04/01/2014

Pg: 2 of 3

PER CURIAM:
Daniel
court’s
judge

order

and

Temple,

Jr.,

accepting

dismissing

the

his

seeks

to

appeal

recommendation

28

U.S.C.

of

§ 2254

the
the

district
magistrate

(2012)

petition

because it was a second or successive petition and Temple had
not received authorization from this court.

The order is not

appealable

judge

unless

a

circuit

justice

or

issues

a

certificate of appealability.

28 U.S.C. § 2253(c)(1)(A) (2012);

Reid

363,

v.

Angelone,

certificate

of

369

F.3d

appealability

369

will

(4th
not

Cir.

2004).
absent

issue

A
“a

substantial showing of the denial of a constitutional right.”
28 U.S.C. § 2253(c)(2) (2012).
relief

on

the

demonstrating
district

merits,
that

court’s

debatable

or

a

prisoner

reasonable

assessment

wrong.

When the district court denies

Slack

satisfies

jurists

this

would

of

the

v.

McDaniel,

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 Temple has not made the requisite showing.
2

Accordingly, we

Appeal: 13-7904

Doc: 17

Filed: 04/01/2014

Pg: 3 of 3

deny a certificate of appealability, deny leave to proceed in
forma pauperis, deny the motion for transcripts at government
expense and dismiss the appeal.
Additionally,
and

informal

brief

we

as

construe

an

Temple’s

application

successive § 2254 petition.

to

notice
file

a

of

appeal

second

or

United States v. Winestock, 340

F.3d 200, 208 (4th Cir. 2003).

In order to obtain authorization

to file a successive § 2254 petition, a prisoner must assert
claims based on either:

(1) a new rule of constitutional law,

previously unavailable, made retroactive by the Supreme Court to
cases on collateral review; or (2) newly discovered evidence,
not

previously

discoverable

by

due

diligence,

that

would

be

sufficient to establish by clear and convincing evidence that,
but

for

constitutional

error,

no

reasonable

factfinder

have found the petitioner guilty of the offense.
§ 2244(b)(2) (2012).
these

criteria.

would

28 U.S.C.

Temple’s claims do not satisfy either of

Therefore,

we

deny

authorization

to

file

a

successive § 2254 petition.
We dispense with oral argument because the facts and
legal
before

contentions
this

court

are

adequately

and

argument

presented

would

not

in
aid

the
the

materials
decisional

process.
DISMISSED

3