Howard v. South Carolina

                            UNPUBLISHED

                   UNITED STATES COURT OF APPEALS
                       FOR THE FOURTH CIRCUIT


                            No. 02-7472



BRIAN HOWARD, Lieber Correctional Institution,

                                           Petitioner - Appellant,

          versus


STATE OF SOUTH CAROLINA; CHARLES MOLONY
CONDON, Attorney General of the State of South
Carolina,

                                          Respondents - Appellees.



Appeal from the United States District Court for the District of
South Carolina, at Greenville. Cameron M. Currie, District Judge.
(CA-02-656-6)


Submitted:   January 28, 2003          Decided:     February 14, 2003


Before WILLIAMS, MICHAEL, and KING, Circuit Judges.


Dismissed by unpublished per curiam opinion.


Brian Howard, Appellant Pro Se. Samuel Creighton Waters, OFFICE OF
THE ATTORNEY GENERAL OF SOUTH CAROLINA, Columbia, South Carolina,
for Appellees.


Unpublished opinions are not binding precedent in this circuit.
See Local Rule 36(c).
PER CURIAM:

     Brian Howard, a state prisoner, seeks to appeal the district

court’s order accepting the recommendation of the magistrate judge

and dismissing his 28 U.S.C. § 2254 (2000) petition.          An appeal may

not be taken from the final order in a habeas corpus proceeding

unless   a   circuit   justice   or   judge   issues   a    certificate   of

appealability.    28 U.S.C. § 2253(c)(1) (2000).           When, as here, a

district court dismisses a § 2254 petition solely on procedural

grounds, a certificate of appealability will not issue unless the

petitioner can demonstrate both “(1) ‘that jurists of reason would

find it debatable whether the petition states a valid claim of the

denial of a constitutional right’ and (2) ‘that jurists of reason

would find it debatable whether the district court was correct in

its procedural ruling.’”    Rose v. Lee, 252 F.3d 676, 684 (4th Cir.)

(quoting Slack v. McDaniel, 529 U.S. 473, 484 (2000)), cert.

denied, 534 U.S. 941 (2001).

     We have reviewed the record and conclude for the reasons

stated by the district court that Howard has not made the requisite

showing.     See Howard v. South Carolina, No. CA-02-656-6 (D.S.C.

filed Sept. 10, 2002 and entered Sept. 11, 2002).           Accordingly, we

deny a certificate of appealability and dismiss the appeal.               We

dispense with oral argument because the facts and legal contentions




                                      2
are adequately presented in the materials before the court and

argument would not aid the decisional process.




                                                     DISMISSED




                                3