Tony Cunningham v. Warden Cartledge

UNPUBLISHED

UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT

No. 12-7656

TONY CUNNINGHAM,

Petitioner - Appellant,

WARDEN LEROY CARTLEDGE,

Respondent - Appellee.

Appeal from the United States District Court for the District of
South Carolina, at Orangeburg. J. Michelle Childs, District
Judge. (5:11-cv-01037-JMC)

Submitted: January 29, 2013 Decided: February 6, 2013

Before MOTZ, GREGORY, and KEENAN, Circuit Judges.

Dismissed by unpublished per curiam opinion.

Tony Cunningham, Appellant Pro Se. Donald John Zelenka, Senior
Assistant Attorney General, Melody Jane Brown, Assistant
Attorney General, Columbia, South Carolina, for Appellee.

Unpublished opinions are not binding precedent in this circuit.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

Tony Cunningham 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)(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 Cunningham 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

2
before this court and argument would not aid the decisional

process.

DISMISSED