Phillip Byrd v. Joseph McFadden

Filing

UNPUBLISHED PER CURIAM OPINION filed. Motion disposition in opinion--denying Motion certificate of appealability (Local Rule 22(a)) [999797396-2] Originating case number: 0:14-cv-04864-RBH Copies to all parties and the district court/agency. [1000051291]. Mailed to: Phillip Byrd. [16-6555]

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UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT

No. 16-6555

PHILLIP BYRD,
Petitioner - Appellant,
v.
JOSEPH MCFADDEN,
Respondent - Appellee.

Appeal from the United States District Court for the District of
South Carolina, at Rock Hill. R. Bryan Harwell, District Judge.
(0:14-cv-04864-RBH)

Submitted:

March 20, 2017

Before TRAXLER
Circuit Judge.

and

AGEE,

Decided:

Circuit

Judges,

and

March 29, 2017

DAVIS,

Senior

Dismissed by unpublished per curiam opinion.

Phillip Byrd, 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Unpublished opinions are not binding precedent in this circuit.

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PER CURIAM:
Phillip Byrd 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
Byrd has not made the requisite showing.

Accordingly, we deny

Byrd’s motion for a certificate of appealability and dismiss the
appeal.
legal

We dispense with oral argument because the facts and

contentions

are

adequately
2

presented

in

the

materials

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before

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this

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court

and

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argument

would

not

aid

the

decisional

process.
DISMISSED

3