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UNPUBLISHED PER CURIAM OPINION filed.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. [1000150209]. Mailed to: David Heath. [16-7652]

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Appeal: 16-7652 Doc: 17 Filed: 09/06/2017 Pg: 1 of 2 UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 16-7652 DAVID HEATH, Petitioner - Appellant, v. WARDEN ROBERT STEVENSON, Respondent - Appellee.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 Dismissed by unpublished per curiam opinion.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 Appellee. Unpublished opinions are not binding precedent in this circuit. Appeal: 16-7652 Doc: 17 Filed: 09/06/2017 Pg: 2 of 2 PER CURIAM: 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 process. DISMISSED 2

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