Phillip Byrd v. Joseph McFadden


UNPUBLISHED PER CURIAM OPINION filed.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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Appeal: 16-6555 Doc: 7 Filed: 03/29/2017 Pg: 1 of 3 UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 16-6555 PHILLIP BYRD, Petitioner - Appellant, v. JOSEPH MCFADDEN, Respondent - Appellee.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 and AGEE, Decided: Circuit Judges, and March 29, 2017 DAVIS, Senior Dismissed by unpublished per curiam opinion.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 Unpublished opinions are not binding precedent in this circuit. Appeal: 16-6555 Doc: 7 Filed: 03/29/2017 Pg: 2 of 3 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 Appeal: 16-6555 before Doc: 7 this Filed: 03/29/2017 court and Pg: 3 of 3 argument would not aid the decisional process. DISMISSED 3

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