Marquita Smith v. Warden Marian Boulware


UNPUBLISHED PER CURIAM OPINION filed. Motion disposition in opinion--denying Motion to proceed in forma pauperis (FRAP 24) [999981411-2] Originating case number: 8:15-cv-02165-RMG Copies to all parties and the district court/agency. [1000139207].. [16-7414]

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Appeal: 16-7414 Doc: 13 Filed: 08/17/2017 Pg: 1 of 2 UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 16-7414 MARQUITA SMITH, Petitioner - Appellant, v. WARDEN MARIAN BOULWARE, Respondent - Appellee. Appeal from the United States District Court for the District of South Carolina, at Anderson. Richard M. Gergel, District Judge. (8:15-cv-02165-RMG) Submitted: July 28, 2017 Decided: August 17, 2017 Before KEENAN, DIAZ, and THACKER, Circuit Judges. Dismissed by unpublished per curiam opinion. Cameron Jane Blazer, BLAZER LAW FIRM, Mount Pleasant, South Carolina, for Appellant. 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 Unpublished opinions are not binding precedent in this circuit.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: 16-7414 Doc: 13 Filed: 08/17/2017 Pg: 2 of 2 PER CURIAM: Marquita Smith seeks to appeal the district court’s order accepting the recommendation of the magistrate judge and denying relief on her 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.” 28 U.S.C. § 2253(c)(2) (2012). 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 Smith 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 presented in the materials before this court and argument would not aid the decisional process. DISMISSED 2

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