Berry v. State of South Carolina

UNPUBLISHED

UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT

No. 09-6399

ROBERT FRANCIS BERRY,

Petitioner – Appellant,

STATE OF SOUTH CAROLINA; KEVIN B. CARTLEDGE, Acting Warden
of McCormick Correctional Institution,

Respondents – Appellees.

Appeal from the United States District Court for the District of
South Carolina, at Beaufort. Henry F. Floyd, District Judge.
(9:08-cv-00754-HFF)

Submitted: December 15, 2009 Decided: December 17, 2009

Before MICHAEL and DUNCAN, Circuit Judges, and HAMILTON, Senior
Circuit Judge.

Dismissed by unpublished per curiam opinion.

Robert Francis Berry, Appellant Pro Se. Donald John Zelenka,
Deputy Assistant Attorney General, Columbia, South Carolina, for
Appellees.

Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:

Robert Francis Berry 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 (2006)

petition. The order is not appealable unless a circuit justice

or judge issues a certificate of appealability. 28 U.S.C.

§ 2253(c)(1) (2006). 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) (2006). A

prisoner satisfies this standard by demonstrating that

reasonable jurists would find that any assessment of the

constitutional claims by the district court 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 Berry 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