Marlon Rivera v. Scott Lewis

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                             UNPUBLISHED

                   UNITED STATES COURT OF APPEALS
                       FOR THE FOURTH CIRCUIT


                             No. 17-6066


MARLON RIVERA,

                 Petitioner - Appellant,

          v.

SCOTT LEWIS, Warden (PCI),

                 Respondent - Appellee.



Appeal from the United States District Court for the District of
South Carolina, at Orangeburg.   Mary G. Lewis, District Judge.
(5:16-cv-00837-MGL)


Submitted:   February 23, 2017             Decided:   February 28, 2017


Before SHEDD and DIAZ, Circuit Judges, and DAVIS, Senior Circuit
Judge.


Dismissed by unpublished per curiam opinion.


Marlon Rivera, Appellant Pro Se. Alphonso Simon, Jr., Assistant
Attorney General, Donald John Zelenka, Senior Assistant Attorney
General, Columbia, South Carolina, for Appellee.


Unpublished opinions are not binding precedent in this circuit.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

       Marlon Rivera 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

Rivera has not made the requisite showing.                   Accordingly, we deny

a certificate of appealability and dismiss the appeal.                           We deny

Rivera’s motions for appointment of counsel and for a transcript

at government expense.             We dispense with oral argument because

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the facts and legal contentions are adequately presented in the

materials   before   this   court   and   argument   would   not    aid   the

decisional process.



                                                                   DISMISSED




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