Rogers v. Rushton

UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 04-7990 HAYWARD LEON ROGERS, Petitioner - Appellant, versus COLIE RUSHTON, Warden; HENRY MCMASTER, Attorney General of the State of South Carolina, Respondents - Appellees. Appeal from the United States District Court for the District of South Carolina, at Anderson. Margaret B. Seymour, District Judge. (CA-04-512-8-24BI) Submitted: March 14, 2005 Decided: April 1, 2005 Before NIEMEYER and GREGORY, Circuit Judges, and HAMILTON, Senior Circuit Judge. Dismissed by unpublished per curiam opinion. Hayward Leon Rogers, Appellant Pro Se. Donald John Zelenka, Chief Deputy Attorney General, Derrick K. McFarland, 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 Unpublished opinions are not binding precedent in this circuit.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: Hayward Leon Rogers seeks to appeal the district court’s order adopting the report of a magistrate judge and dismissing his petition filed under 28 U.S.C. § 2254 (2000), based on his failure to exhaust his state remedies. An appeal may not be taken from the final order in a § 2254 proceeding unless a circuit justice or judge issues a certificate of appealability. 28 U.S.C. § 2253(c)(1) (2000). 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) (2000). A prisoner satisfies this standard by demonstrating that reasonable jurists would find that his constitutional claims are debatable and that any dispositive procedural rulings by the district court are also debatable or wrong. See Miller-El v. Cockrell, 537 U.S. 322, 336 (2003); Slack v. McDaniel, 529 U.S. 473, 484 (2000); Rose v. Lee, 252 F.3d 676, 683 (4th Cir. 2001). We have independently reviewed the record and conclude that Rogers has not made the requisite showing that the district court’s procedural ruling was wrong. 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 the court and argument would not aid the decisional process. DISMISSED - 2 -