Montavis Kentrail Gaines v. Richard Cothram

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UNPUBLISHED PER CURIAM OPINION filed. Motion disposition in opinion--denying Motion to proceed in forma pauperis (FRAP 24) [999843863-2]; denying Motion certificate of appealability (Local Rule 22(a)) [999783864-2] Originating case number: 5:14-cv-04652-JMC Copies to all parties and the district court/agency. [1000026729]. Mailed to: Gaines. [16-6440]

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Appeal: 16-6440 Doc: 23 Filed: 02/21/2017 Pg: 1 of 3 UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 16-6440 MONTAVIS KENTRAIL GAINES, Petitioner - Appellant, v. WARDEN RICHARD COTHRAM, Respondent - Appellee. Appeal from the United States District Court for the District of South Carolina, at Orangeburg. J. Michelle Childs, District Judge. (5:14-cv-04652-JMC) Submitted: February 10, 2017 Decided: February 21, 2017 Before TRAXLER, KING, and SHEDD, Circuit Judges. Dismissed by unpublished per curiam opinion. Montavis Kentrail Gaines, Appellant Pro Se. Donald John Zelenka, Senior Assistant Attorney General, Alphonso Simon, Jr., Assistant Attorney General, Columbia, South Carolina, for Appellee. Unpublished opinions are not binding precedent in this circuit. Appeal: 16-6440 Doc: 23 Filed: 02/21/2017 Pg: 2 of 3 PER CURIAM: Montavis Kentrail Gaines 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 of appealability. 28 U.S.C. § 2253(c)(1)(A) (2012). 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 Gaines has not made the requisite showing. Accordingly, we deny Gaines’ motion for 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 2 Appeal: 16-6440 Doc: 23 adequately Filed: 02/21/2017 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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