John Portee, Jr. v. Warden Robert Stevenson


UNPUBLISHED PER CURIAM OPINION filed. Certificate of appealability denied. Originating case number: 8:15-cv-00487-PMD. Copies to all parties and the district court. [999976631]. Mailed to: John Portee Jr. [16-6365]

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Appeal: 16-6365 Doc: 6 Filed: 11/29/2016 Pg: 1 of 3 UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 16-6365 JOHN PORTEE, JR., a/k/a John H. Portee, Jr., Petitioner - Appellant, v. WARDEN ROBERT STEVENSON, Respondent - Appellee. Appeal from the United States District Court for the District of South Carolina, at Anderson. Patrick Michael Duffy, Senior District Judge. (8:15-cv-00487-PMD) Submitted: November 18, 2016 Decided: November 29, 2016 Before GREGORY, Chief Judge, and WILKINSON and NIEMEYER, Circuit Judges. Dismissed by unpublished per curiam opinion. John Portee, Jr., Appellant Pro Se. Donald John Zelenka, Senior Assistant Attorney General, William Edgar Salter, III, Assistant Attorney General, Columbia, South Carolina, for Appellee. Unpublished opinions are not binding precedent in this circuit. Appeal: 16-6365 Doc: 6 Filed: 11/29/2016 Pg: 2 of 3 PER CURIAM: John Portee, 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. satisfies jurists would of the v. McDaniel, Slack this 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 Portee has not made the requisite showing. a certificate dispense with of appealability oral argument and dismiss because 2 Accordingly, we deny the the appeal. facts and We legal Appeal: 16-6365 Doc: 6 contentions Filed: 11/29/2016 are adequately Pg: 3 of 3 presented in the materials before this court and argument would not aid the decisional process. DISMISSED 3

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