Roger Burke v. Robert Stevenson

Filing

UNPUBLISHED PER CURIAM OPINION filed. Motion disposition in opinion--denying Motion to proceed in forma pauperis (FRAP 24) [999814940-2] Originating case number: 0:15-cv-01107-MBS Copies to all parties and the district court/agency. [999915385]. Mailed to: R Burke. [16-6503]

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UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT

No. 16-6503

ROGER DALE BURKE,
Petitioner - Appellant,
v.
WARDEN ROBERT STEVENSON,
Respondent - Appellee.

Appeal from the United States District Court for the District of
South Carolina, at Rock Hill.
Margaret B. Seymour, Senior
District Judge. (0:15-cv-01107-MBS)

Submitted:

August 18, 2016

Decided:

August 23, 2016

Before WILKINSON, KING, and KEENAN, Circuit Judges.

Dismissed by unpublished per curiam opinion.

Roger Dale Burke, Appellant Pro Se.
Caroline M. Scrantom,
OFFICE OF THE ATTORNEY GENERAL OF SOUTH CAROLINA, 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Unpublished opinions are not binding precedent in this circuit.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:
Roger Dale Burke 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.
not

appealable

unless

a

circuit

certificate of appealability.
A

certificate

of

justice

or

The order is

judge

issues

a

28 U.S.C. § 2253(c)(1)(A) (2012).

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

DISMISSED

3