Horace Abney, Jr. v. Warden, Perry Correctional

Filing

UNPUBLISHED PER CURIAM OPINION filed. Motion disposition in opinion--denying motion to proceed in forma pauperis (FRAP 24) [999706135-2] Originating case number: 5:14-cv-04084-RBH Copies to all parties and the district court/agency. [999855858]. Mailed to: appellant. [15-7737]

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UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT

No. 15-7737

HORACE ABNEY, JR.,
Petitioner - Appellant,
v.
WARDEN, PERRY CORRECTIONAL INSTITUTION,
Respondent - Appellee.

Appeal from the United States District Court for the District of
South Carolina, at Orangeburg.
R. Bryan Harwell, District
Judge. (5:14-cv-04084-RBH)

Submitted:

March 31, 2016

Decided:

June 16, 2016

Before GREGORY, DUNCAN, and HARRIS, Circuit Judges.

Dismissed by unpublished per curiam opinion.

Horace Abney, Jr., 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Unpublished opinions are not binding precedent in this circuit.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:
Horace Abney, Jr., seeks to appeal the district court’s
order accepting the recommendation of the magistrate judge and
denying relief on his 28 U.S.C. § 2254 (2012) petition.

The

order is not appealable unless a circuit justice or judge issues
a

certificate

(2012).

of

appealability.

28

U.S.C.

§ 2253(c)(1)(A)

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) (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
Abney has not made the requisite showing.

Accordingly, we deny

a certificate of appealability, deny leave to proceed in forma
pauperis,

and

dismiss

the

appeal.

We

dispense

with

oral

argument because the facts and legal contentions are adequately
2

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presented in the materials before this court and argument would
not aid the decisional process.
DISMISSED

3