Hitter v. Pate

UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 05-7648 MICHAEL HITTER, Petitioner - Appellant, versus JOHN R. PATE, Acting Warden at Allendale Correctional Institution; CHARLES CONDON, South Carolina Attorney General, Respondents - Appellees. Appeal from the United States District Court for the District of South Carolina, at Charleston. R. Bryan Harwell, District Judge. (CA-02-1057-2-RBH) Submitted: March 23, 2006 Decided: March 29, 2006 Before WILKINSON, LUTTIG, and WILLIAMS, Circuit Judges. Dismissed by unpublished per curiam opinion. Michael Hitter, Appellant Pro Se. 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 Unpublished opinions are not binding precedent in this circuit.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: Michael Hitter, a state prisoner, seeks to appeal the district court’s order accepting the recommendation of the magistrate judge and denying relief on his petition filed under 28 U.S.C. § 2254 (2000). The order is not appealable 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 the district court’s assessment of his constitutional claims is debatable or wrong and that any dispositive procedural ruling by the district court is likewise debatable. Miller-El v. Cockrell, 537 U.S. 322, 336-38 (2003); Slack v. McDaniel, 529 U.S. 473, 484 (2000); Rose v. Lee, 252 F.3d 676, 683-84 (4th Cir. 2001). We have independently reviewed the record and conclude that Hitter 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 the court and argument would not aid the decisional process. DISMISSED - 2 -