Victor Penny v. Joseph McFadden
UNPUBLISHED PER CURIAM OPINION filed. Originating case number: 2:15-cv-04817-PMD Copies to all parties and the district court/agency. . Mailed to: V Penny. [17-6381]
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UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
VICTOR COSTELLOS PENNY,
Petitioner - Appellant,
Respondent - Appellee.
Appeal from the United States District Court for the District of South Carolina, at
Charleston. Patrick Michael Duffy, Senior District Judge. (2:15-cv-04817-PMD)
Submitted: July 20, 2017
Decided: July 25, 2017
Before DUNCAN and WYNN, Circuit Judges, and HAMILTON, Senior Circuit Judge.
Dismissed by unpublished per curiam opinion.
Victor Costellos Penny, Appellant Pro Se. Donald John Zelenka, Deputy Attorney
General, Sherrie Ann Butterbaugh, OFFICE OF THE ATTORNEY GENERAL OF
SOUTH CAROLINA, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
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Victor Costellos Penny 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. 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
We have independently reviewed the record and conclude that Penny has not made
the requisite showing. Accordingly, we deny a certificate of appealability 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
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