UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 09-6947
TONY TYRONE WILSON,
Petitioner - Appellant,
v.
STATE OF SOUTH CAROLINA; WARDEN, BROAD RIVER CORRECTIONAL
INSTITUTION,
Respondents - Appellees.
Appeal from the United States District Court for the District of
South Carolina, at Columbia. Sol Blatt, Jr., Senior District
Judge. (3:09-cv-00303-SB)
Submitted: January 27, 2010 Decided: February 10, 2010
Before GREGORY, SHEDD, and DUNCAN, Circuit Judges.
Dismissed by unpublished per curiam opinion.
Tony Tyrone Wilson, Appellant Pro Se.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Tony Tyrone Wilson seeks to appeal the district
court’s order adopting the recommendation of the magistrate
judge and dismissing his 28 U.S.C. § 2254 (2006) petition as an
unauthorized, successive petition. 1 The order is not appealable
unless a circuit justice or judge issues a certificate of
appealability. 28 U.S.C. § 2253(c)(1) (2006); see Jones v.
Braxton, 392 F.3d 683, 685, 691 (4th Cir. 2004) (certificate of
appealability required to appeal dismissal of habeas petition as
successive and unauthorized). 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 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 Wilson has
1
This appeal is back from a limited remand to the district
court, in which the district court found good cause to extend
the time period in which Wilson could file his notice of appeal.
Fed. R. App. P. 4(a)(1), (5). Therefore, the appeal is timely.
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not made the requisite showing. 2 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
On appeal, Wilson alleges he never received the
February 25, 2009 report and recommendation of the magistrate
judge. This assertion is supported by the record, and the
district court on limited remand voiced its willingness to
permit Wilson to file objections to the magistrate judge’s
report should this court remand the case for that purpose.
However, because the record makes clear that Wilson’s petition
is an unauthorized successive habeas petition, over which the
district court has no jurisdiction, we decline to remand the
case for that purpose.
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