Gregory Green v. David Dunlap
UNPUBLISHED PER CURIAM OPINION filed. Motion disposition in opinion--denying Motion to proceed in forma pauperis (FRAP 24) [1000038332-2] Originating case number: 0:16-cv-00846-RBH Copies to all parties and the district court/agency. . Mailed to: Green, Wilson. [17-6179]
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UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
Petitioner - Appellant,
DAVID DUNLAP, Warden,
Respondent - Appellee.
Appeal from the United States District Court for the District of South Carolina, at Rock
Hill. R. Bryan Harwell, District Judge. (0:16-cv-00846-RBH)
Submitted: March 30, 2017
Decided: April 4, 2017
Before TRAXLER and WYNN, Circuit Judges, and HAMILTON, Senior Circuit Judge.
Dismissed by unpublished per curiam opinion.
Gregory Green, Appellant Pro Se. Donald John Zelenka, Senior Assistant Attorney
General, Caroline M. Scrantom, Alan Wilson, OFFICE OF THE ATTORNEY GENERAL
OF SOUTH CAROLINA, Columbia, South Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
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Gregory Green seeks to appeal the district court’s order accepting the
recommendation of the magistrate judge and dismissing without prejudice his 28 U.S.C.
§ 2254 (2012) petition for failure to exhaust state court remedies. 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 Green 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.
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