Demetrius Jarod Smalls v. Joseph McFadden

Filing

UNPUBLISHED PER CURIAM OPINION filed. Originating case number: 2:13-cv-02651-RMG Copies to all parties and the district court/agency. [999737362]. Mailed to: Smalls. [15-7265]

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UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT

No. 15-7265

DEMETRIUS JAROD SMALLS,
Petitioner – Appellant,
v.
JOSEPH MCFADDEN,
Respondent - Appellee.

Appeal from the United States District Court for the District of
South Carolina, at Charleston.
Richard Mark Gergel, District
Judge. (2:13-cv-02651-RMG)

Submitted:

January 14, 2016

Decided:

January 19, 2016

Before AGEE, WYNN, and FLOYD, Circuit Judges.

Dismissed by unpublished per curiam opinion.

Demetrius Jarod Smalls, Appellant Pro Se. James Anthony Mabry,
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Unpublished opinions are not binding precedent in this circuit.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:
Demetrius Jarod Smalls seeks to appeal the district court’s
text order denying as moot the motion to dismiss that Smalls
filed

in

his

28

U.S.C.

§ 2254

(2012)

petition.

The

court

previously accepted the recommendation of the magistrate judge
and denied relief on Smalls’ 28 U.S.C. § 2254 (2012) petition.
The order is not appealable unless a circuit justice or judge
issues

a

certificate

§ 2253(c)(1)(A) (2012).
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) (2012).

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
Smalls has not made the requisite showing.
a

certificate

of

appealability
2

and

Accordingly, we deny

dismiss

the

appeal.

We

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dispense

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with

contentions

are

oral

argument

adequately

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because

presented

in

the
the

facts

and

legal

materials

before

this court and argument would not aid the decisional process.

DISMISSED

3