Richard Sims v. Colie Rushton, No. 08-7087 (4th Cir. 2008)

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UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 08-7087 RICHARD ALVIN SIMS, a/k/a Richard Sims, Petitioner Appellant, v. COLIE RUSHTON, Warden, McCormick Correctional Institution, Respondent Appellee. Appeal from the United States District Court for the District of South Carolina, at Greenville. Henry M. Herlong, Jr., District Judge. (6:07-cv-01667-HMH) Submitted: November 13, 2008 Decided: November 19, 2008 Before WILKINSON, NIEMEYER, and SHEDD, Circuit Judges. Dismissed by unpublished per curiam opinion. Richard Alvin Sims, Appellant Pro Se. Unpublished opinions are not binding precedent in this circuit. PER CURIAM: Richard court s judge order and petition. or judge Alvin accepting denying issues constitutional reasonable seeks to appeal recommendation on his 28 of U.S.C. the the § district magistrate 2254 (2000) The order is not appealable unless a circuit justice absent prisoner the relief a certificate § 2253(c)(1) (2000). issue Sims a substantial satisfies constitutional appealability. 28 U.S.C. A certificate of appealability will not right. jurists of 28 this by U.S.C. find the of the § 2253(c)(2) standard would claims showing that by of (2000). demonstrating any district denial assessment court is a A that of debatable the or wrong and that any dispositive procedural ruling by the district Miller-El v. Cockrell, 537 U.S. court is likewise debatable. 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 Sims 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 2

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