Russell Moore v. Robert Stevenson

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                            UNPUBLISHED

                  UNITED STATES COURT OF APPEALS
                      FOR THE FOURTH CIRCUIT


                            No. 11-6915


RUSSELL DARRYL MOORE,

                Petitioner - Appellant,

          v.

ROBERT STEVENSON, Warden,

                Respondent - Appellee.



Appeal from the United States District Court for the District of
South Carolina, at Rock Hill.      J. Michelle Childs, District
Judge. (0:10-cv-01413-JMC)


Submitted:   November 3, 2011             Decided:   November 18, 2011


Before GREGORY, DUNCAN, and WYNN, Circuit Judges.


Dismissed by unpublished per curiam opinion.


Russell Darryl Moore, Appellant Pro Se.   Donald John Zelenka,
Deputy Assistant Attorney General, William Edgar Salter, III,
Assistant Attorney General, Columbia, South Carolina, for
Appellee.


Unpublished opinions are not binding precedent in this circuit.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

              Russell     Darryl       Moore       seeks       to    appeal       the    district

court’s    order     accepting        the     recommendation              of    the    magistrate

judge and dismissing as untimely 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)(A) (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).                         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       Moore    has    not       made    the       requisite      showing.

Accordingly, we deny a certificate of appealability and dismiss

the appeal.        We also deny the motions to authorize a transcript

at the Government’s expense and to appoint counsel.                                   We dispense

with oral argument because the facts and legal contentions are

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adequately   presented   in   the   materials   before   the   court   and

argument would not aid the decisional process.

                                                               DISMISSED




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