David Heath v. Robert Stevenson
UNPUBLISHED PER CURIAM OPINION filed. Motion disposition in opinion--denying Motion for abeyance (Local Rule 12(d)) [1000036088-2]; denying Motion to remand case [1000002139-3]; denying a certificate of appealability. Originating case number: 8:15-cv-02342-TMC. Copies to all parties and the district court. . Mailed to: David Heath. [16-7652]
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UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
Petitioner - Appellant,
WARDEN ROBERT STEVENSON,
Respondent - Appellee.
Appeal from the United States District Court for the District of South Carolina, at
Anderson. Timothy M. Cain, District Judge. (8:15-cv-02342-TMC)
Submitted: August 30, 2017
Decided: September 6, 2017
Before GREGORY, Chief Judge, and MOTZ and SHEDD, Circuit Judges.
Dismissed by unpublished per curiam opinion.
David Heath, Appellant Pro Se. Donald John Zelenka, Deputy Attorney General,
William Edgar Salter, III, Assistant Attorney General, Columbia, South Carolina, for
Unpublished opinions are not binding precedent in this circuit.
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David Heath seeks to appeal the district court’s order adopting the magistrate
judge’s recommendation and dismissing Heath’s 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 Heath has not made
the requisite showing. Accordingly, we deny a certificate of appealability, deny Heath’s
motions to place the case in abeyance and to remand, 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
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