Marlon Rivera v. Scott Lewi

Filing

UNPUBLISHED PER CURIAM OPINION filed. Motion disposition in opinion--denying Motion for transcript at government expense [1000017778-2]; denying Motion to appoint/assign counsel [1000017776-2] Originating case number: 5:16-cv-00837-MGL Copies to all parties and the district court/agency. [1000032097]. Mailed to: Marlon Rivera TYGER RIVER CORRECTIONAL INSTITUTE 200 Prison Road Enoree, SC 29335-0000. [17-6066]

Appeal: 17-6066

Doc: 8

Filed: 02/28/2017

Pg: 1 of 3

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT

No. 17-6066

MARLON RIVERA,
Petitioner - Appellant,
v.
SCOTT LEWIS, Warden (PCI),
Respondent - Appellee.

Appeal from the United States District Court for the District of
South Carolina, at Orangeburg.
Mary G. Lewis, District Judge.
(5:16-cv-00837-MGL)

Submitted:

February 23, 2017

Decided:

February 28, 2017

Before SHEDD and DIAZ, Circuit Judges, and DAVIS, Senior Circuit
Judge.

Dismissed by unpublished per curiam opinion.

Marlon Rivera, Appellant Pro Se. Alphonso Simon, Jr., Assistant
Attorney General, Donald John Zelenka, Senior Assistant Attorney
General, Columbia, South Carolina, for Appellee.

Unpublished opinions are not binding precedent in this circuit.

Appeal: 17-6066

Doc: 8

Filed: 02/28/2017

Pg: 2 of 3

PER CURIAM:
Marlon Rivera 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

by

that

the

claims

is

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
Rivera has not made the requisite showing.

Accordingly, we deny

a certificate of appealability and dismiss the appeal.

We deny

Rivera’s motions for appointment of counsel and for a transcript
at government expense.

We dispense with oral argument because
2

Appeal: 17-6066

Doc: 8

Filed: 02/28/2017

Pg: 3 of 3

the facts and legal contentions are adequately presented in the
materials

before

this

court

and

argument

would

not

aid

the

decisional process.

DISMISSED

3