James Russell v. Warden of Broad River Prison

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                             UNPUBLISHED

                   UNITED STATES COURT OF APPEALS
                       FOR THE FOURTH CIRCUIT


                             No. 16-6204


JAMES RUSSELL,

                 Petitioner – Appellant,

          v.

WARDEN OF BROAD RIVER PRISON,

                 Respondent - Appellee.



Appeal from the United States District Court for the District of
South Carolina, at Rock Hill. David C. Norton, District Judge.
(0:15-cv-00267-DCN)


Submitted:   October 28, 2016              Decided:   November 4, 2016


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


Dismissed by unpublished per curiam opinion.


James Russell, Appellant Pro Se. Donald John Zelenka, Senior
Assistant Attorney General, Columbia, South Carolina, for
Appellee.


Unpublished opinions are not binding precedent in this circuit.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

       James Russell 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 (2012) petition.                              The order is

not    appealable       unless    a   circuit       justice      or    judge    issues     a

certificate of appealability.               28 U.S.C. § 2253(c)(1)(A) (2012).

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) (2012).                   When the district court denies

relief    on    the    merits,    a   prisoner      satisfies         this    standard    by

demonstrating         that     reasonable        jurists   would        find    that     the

district       court’s      assessment    of     the   constitutional          claims     is

debatable      or     wrong.      Slack     v.    McDaniel,      529    U.S.    473,     484

(2000); see Miller-El v. Cockrell, 537 U.S. 322, 336-38 (2003).

When the district court denies relief on procedural grounds, the

prisoner must demonstrate both that the dispositive procedural

ruling is debatable, and that the petition states a debatable

claim of the denial of a constitutional right.                          Slack, 529 U.S.

at 484-85.

       We have independently reviewed the record and conclude that

Russell 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



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contentions   are   adequately   presented   in   the   materials   before

this court and argument would not aid the decisional process.



                                                               DISMISSED




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