Johnnie Smith, Jr. v. Robert Stevenson

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UNPUBLISHED PER CURIAM OPINION filed. Originating case number: 8:12-cv-02566-DCN. Copies to all parties and the district court/agency. [999836715]. Mailed to: J. Smith, Jr.. [15-7936]

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Appeal: 15-7936 Doc: 10 Filed: 05/31/2016 Pg: 1 of 3 UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 15-7936 JOHNNIE SMITH, JR., Petitioner - Appellant, v. ROBERT STEVENSON, Warden, Respondent - Appellee. Appeal from the United States District Court for the District of South Carolina, at Anderson. David C. Norton, District Judge. (8:12-cv-02566-DCN) Submitted: May 26, 2016 Decided: May 31, 2016 Before TRAXLER, Chief Judge, and NIEMEYER and FLOYD, Circuit Judges. Dismissed by unpublished per curiam opinion. Johnnie Smith, Jr., Appellant Pro Se. Donald John Zelenka, Senior Assistant Attorney General, Brendan J. McDonald, Assistant Attorney General, Columbia, South Carolina, for Appellee. Unpublished opinions are not binding precedent in this circuit. Appeal: 15-7936 Doc: 10 Filed: 05/31/2016 Pg: 2 of 3 PER CURIAM: Johnnie Smith, Jr., seeks to appeal the district court’s order denying his Fed. R. Civ. P. 60(b) motion for reconsideration of a prior order 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 of appealability. 28 U.S.C. § 2253(c)(1)(A) (2012); Reid v. Angelone, 369 F.3d 363, 369 (4th Cir. 2004). A certificate of appealability will not issue absent “a substantial showing of the denial of a constitutional right.” § 2253(c)(2) (2012). 28 U.S.C. 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 (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 Smith has not made the requisite showing. Accordingly, we deny a certificate of appealability and dismiss the appeal. We dispense with oral argument because the facts and legal contentions are 2 Appeal: 15-7936 Doc: 10 adequately Filed: 05/31/2016 presented in the Pg: 3 of 3 materials before this court and argument would not aid the decisional process. DISMISSED 3

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