Simmons v. Rushton

                            UNPUBLISHED

                   UNITED STATES COURT OF APPEALS
                       FOR THE FOURTH CIRCUIT


                            No. 06-6880



DARREN SIMMONS,

                                            Petitioner - Appellant,

          versus


COLIE L. RUSHTON, Warden; HENRY DARGAN
MCMASTER, Attorney General of the State of
South Carolina,

                                           Respondents - Appellees.



Appeal from the United States District Court for the District of
South Carolina, at Charleston. David C. Norton, District Judge.
(2:05-cv-03336-DCN)


Submitted: November 21, 2006              Decided:   November 29, 2006


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


Dismissed by unpublished per curiam opinion.


Darren Simmons, Appellant Pro Se. Samuel Creighton Waters, OFFICE
OF THE ATTORNEY GENERAL OF SOUTH CAROLINA, Columbia, South
Carolina, for Appellees.


Unpublished opinions are not binding precedent in this circuit.
See Local Rule 36(c).
PER CURIAM:

               Darren Simmons 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 (2000) petition.                   The order is not

appealable unless a circuit justice or judge issues a certificate

of appealability. 28 U.S.C. § 2253(c)(1) (2000). 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    Simmons   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




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