Sullivan v. Smith, No. 06-6300 (4th Cir. 2006)

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UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 06-6300 DAVID FERRELL SULLIVAN, Petitioner - Appellant, versus RICHARD SMITH, Warden, Tyger River Correctional Institution; HENRY MCMASTERS, Attorney General of South Carolina, Respondents - Appellees. Appeal from the United States District Court for the District of South Carolina, at Greenville. Henry F. Floyd, District Judge. (6:05-730-HFF) Submitted: March 30, 2006 Decided: April 10, 2006 Before TRAXLER, GREGORY, and SHEDD, Circuit Judges. Dismissed by unpublished per curiam opinion. David Farrell Sullivan, Appellant Pro Se. Unpublished opinions are not binding precedent in this circuit. See Local Rule 36(c). PER CURIAM: David Sullivan seeks to appeal the district court s order adopting the magistrate judge s recommendation to dismiss without prejudice Sullivan s 28 U.S.C. § 2254 (2000) petition, as well as the court s denial of his motion for reconsideration. These orders are 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. § 2253(c)(2) (2000). A prisoner satisfies this 28 U.S.C. standard by demonstrating that reasonable jurists would find that the district court s assessment of his constitutional claims is debatable or wrong and that any dispositive procedural ruling by the district court is likewise debatable. See 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 (4th Cir. 2001). We have independently reviewed the record and conclude that Sullivan has not made the requisite showing. Accordingly, we deny a certificate of appealability and dismiss the appeal. Further, we deny Sullivan s motion to authorize the preparation of transcripts at government expense. We dispense with oral argument, because the facts and legal contentions are adequately presented in the - 2 - materials before the court and argument would not aid the decisional process. DISMISSED - 3 -

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