Smith v. Mitchell, No. 05-7124 (4th Cir. 2006)

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UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 05-7124 JIMMY HAROLD SMITH, Plaintiff - Appellant, versus DOUG MITCHELL, Superintendent, Defendant - Appellee. Appeal from the United States District Court for the Western District of North Carolina, at Asheville. Graham C. Mullen, Senior District Judge. (1:02-cv-282) Submitted: August 24, 2006 Decided: August 28, 2006 Before KING, SHEDD, and DUNCAN, Circuit Judges. Dismissed by unpublished per curiam opinion. Jimmy Harold Smith, Appellant Pro Se. Sandra Wallace-Smith, Assistant Attorney General, Raleigh, North Carolina, for Appellee. Unpublished opinions are not binding precedent in this circuit. See Local Rule 36(c). PER CURIAM: Jimmy Harold Smith, a state prisoner, seeks to appeal the district court s order denying relief on his petition filed under 28 U.S.C. § 2254 (2000). The order is not appealable unless a circuit justice or judge issues a certificate of appealability. 28 U.S.C. § 2253(c)(1) (2000). not issue absent a A certificate of appealability will substantial constitutional right. showing of the denial 28 U.S.C. § 2253(c)(2) (2000). of a A prisoner satisfies this standard by demonstrating that reasonable jurists would find that constitutional the claims district is court s debatable and assessment that any of his dispositive procedural rulings by the district court are also debatable or wrong. See Miller-El v. Cockrell, 537 U.S. 322, 336 (2003); Slack v. McDaniel, 529 U.S. 473, 484 (2000); Rose v. Lee, 252 F.3d 676, 683 (4th Cir. 2001). We have independently reviewed the record and conclude that Smith has not made the requisite showing. Accordingly, we deny Smith s motions appealability and dismiss the appeal. for a certificate of 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 - 2 -

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