Timothy Wayne Wilbanks v. William Byars, No. 12-8153 (4th Cir. 2013)

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UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 12-8153 TIMOTHY WAYNE WILBANKS, Petitioner - Appellant, v. WILLIAM R. BYARS, Dir SCDC; RICKY CHASTAIN, Sheriff Laurens Co, Respondents - Appellees. Appeal from the United States District Court for the District of South Carolina, at Florence. Mary G. Lewis, District Judge. (4:11-cv-02675-MGL) Submitted: February 26, 2013 Decided: March 1, 2013 Before MOTZ, WYNN, and DIAZ, Circuit Judges. Dismissed by unpublished per curiam opinion. Timothy Wayne Wilbanks, Appellant Pro Se. Donald John Zelenka, Senior Assistant Attorney General, Brendan McDonald, OFFICE OF THE ATTORNEY GENERAL OF SOUTH CAROLINA, Columbia, South Carolina; Russell W. Harter, Jr., CHAPMAN, HARTER & HARTER, PA, Greenville, South Carolina, for Appellees. Unpublished opinions are not binding precedent in this circuit. PER CURIAM: Timothy Wayne Wilbanks seeks to appeal the district court s judge order and petition. or judge accepting denying relief recommendation on his 28 of U.S.C. the § magistrate 2254 (2006) The order is not appealable unless a circuit justice issues a certificate § 2253(c)(1)(A) (2006). issue the absent a appealability. 28 U.S.C. A certificate of appealability will not substantial constitutional right. of showing of the denial 28 U.S.C. § 2253(c)(2) (2006). of a When the district court denies relief on the merits, a prisoner satisfies this standard by demonstrating that reasonable jurists would find that the district court s assessment of the constitutional claims is debatable or wrong. Slack v. McDaniel, 529 U.S. 473, 484 Cockrell, (2000); (2003). see Miller-El v. 537 U.S. 322, 336-38 When the district court denies relief on procedural grounds, the prisoner must demonstrate both that the dispositive procedural ruling is debatable, and that the petition states a debatable claim of the denial of a constitutional right. Slack, 529 U.S. at 484-85. We have independently reviewed the record and conclude that Wilbanks has not made the requisite showing. Accordingly, we deny 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 2 presented in the materials before this court and argument would not aid the decisional process. DISMISSED 3