Dwayne Clark v. Warden Busch

Filing

UNPUBLISHED PER CURIAM OPINION filed. Motion disposition in opinion--denying Motion to proceed in forma pauperis (FRAP 24) [999712626-2] Originating case number: 9:14-cv-02002-TMC Copies to all parties and the district court/agency. [999766266]. Mailed to: Dwayne Clark. [15-7714]

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UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT

No. 15-7714

DWAYNE R. CLARK,
Petitioner - Appellant,
v.
WARDEN BUSCH,
Respondent - Appellee.

Appeal from the United States District Court for the District of
South Carolina, at Beaufort.
Timothy M. Cain, District Judge.
(9:14-cv-02002-TMC)

Submitted:

February 25, 2016

Before SHEDD and
Circuit Judge.

HARRIS,

Circuit

Decided:

Judges,

and

March 2, 2016

DAVIS,

Senior

Dismissed by unpublished per curiam opinion.

Dwayne R. Clark, 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Unpublished opinions are not binding precedent in this circuit.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:
Dwayne R. Clark seeks to appeal the district court’s order
accepting

the

magistrate

judge’s

recommendation

to

grant

Respondent’s summary judgment motion on Clark’s 28 U.S.C. § 2254
(2012) petition and he has filed an application to proceed in
forma pauperis.
unless

a

The district court’s order is not appealable

circuit

justice

judge

appealability.

See

certificate

appealability

of

28

or

U.S.C.

issues

a

certificate

§ 2253(c)(1)(A)
will

not

(2012).

issue

absent

of
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

When the district court denies

prisoner

reasonable

assessment

wrong.

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
Clark has not made the requisite showing.
leave

to

proceed

in

forma

pauperis,
2

Accordingly, we deny

deny

a

certificate

of

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appealability, and dismiss the appeal.

We dispense with oral

argument because the facts and legal contentions are adequately
presented in the materials before this court and argument would
not aid the decisional process.

DISMISSED

3