Mallard v. Superintendent, No. 05-7569 (4th Cir. 2006)

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UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 05-7569 JAMES MALLARD, Petitioner - Appellant, versus SUPERINTENDENT PERLMAN, Respondent - Appellee. Appeal from the United States District Court for the Eastern District of North Carolina, at Raleigh. Malcolm J. Howard, District Judge. (CA-05-436) Submitted: December 21, 2005 Decided: January 11, 2006 Before WILLIAMS, KING, and GREGORY, Circuit Judges. Dismissed by unpublished per curiam opinion. James Mallard, Appellant Pro Se. Unpublished opinions are not binding precedent in this circuit. See Local Rule 36(c). PER CURIAM: James Mallard moves for a certificate of appealability, seeking review of the district court's order dismissing as successive his petition filed under 28 U.S.C. § 2254 (2000). An appeal may not be taken from the final order in a § 2254 proceeding unless a circuit appealability. justice or judge issues a 28 U.S.C. § 2253(c)(1) (2000). certificate of A certificate of appealability will not issue for claims addressed by a district court absent a 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 both that his constitutional claims are debatable and that any dispositive procedural rulings by the district court are also debatable or wrong. See Miller-El v. Cockrell, 537 U.S. 322, 338 (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 Mallard has not made the requisite showing. Accordingly, we deny the motion for a certificate of appealability, deny leave to proceed in forma pauperis, 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 - 2 -

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