Francis v. McMaster, No. 06-7299 (4th Cir. 2006)

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UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 06-7299 CHRISTOPHER JOSEPH FRANCIS, Petitioner - Appellant, versus HENRY MCMASTER, Attorney General of the State of South Carolina; WARDEN, Evans Correctional Institution, Respondents - Appellees. Appeal from the United States District Court for the District of South Carolina, at Florence. Henry F. Floyd, District Judge. (4:05-cv-02726-HFF) Submitted: November 15, 2006 Decided: November 22, 2006 Before WIDENER, WILKINSON, and MOTZ, Circuit Judges. Dismissed by unpublished per curiam opinion. Christopher Joseph Francis, Appellant Pro Se. Donald John Zelenka, Samuel Creighton Waters, OFFICE OF THE ATTORNEY GENERAL OF SOUTH CAROLINA, Columbia, South Carolina, for Appellees. Unpublished opinions are not binding precedent in this circuit. See Local Rule 36(c). PER CURIAM: Christopher Joseph Francis seeks to appeal the district court s order accepting the recommendation of the magistrate judge and dismissing without prejudice his 28 U.S.C. § 2254 (2000) petition. judge The order is not appealable unless a circuit justice or 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. 28 U.S.C. § 2253(c)(2) (2000). A prisoner satisfies this standard by demonstrating that reasonable jurists would find that any assessment of the constitutional claims by the district court is debatable or wrong and that any dispositive procedural ruling by the district court is likewise debatable. 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, 683-84 (4th Cir. 2001). We have independently reviewed the record and conclude that Francis 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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