Lewis Fielder v. Robert Stevenson, III, No. 13-6363 (4th Cir. 2013)
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UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 13-6363 LEWIS WAYNE FIELDER, Petitioner - Appellant, v. ROBERT M. STEVENSON, III, Warden, Broad River Correctional Institution, Respondent - Appellee. Appeal from the United States District Court for the District of South Carolina, at Charleston. J. Michelle Childs, District Judge. (2:12-cv-00412-JMC) Submitted: September 25, 2013 Decided: September 27, 2013 Before MOTZ, KING, and DAVIS, Circuit Judges. Dismissed by unpublished per curiam opinion. Jeremy A. Thompson, LAW OFFICE OF JEREMY A. THOMPSON, LLC, Columbia, South Carolina, for Appellant. Donald John Zelenka, Senior Assistant Attorney General, Melody Jane Brown, Assistant Attorney General, Columbia, South Carolina, for Appellee. Unpublished opinions are not binding precedent in this circuit. PER CURIAM: Lewis Wayne Fielder seeks to appeal the district court s orders granting Respondent s motion to strike Fielder s affidavit seeking to enhance the state court record, and accepting the recommendation of the magistrate judge and denying relief on his 28 U.S.C. § 2254 (2006) petition. The orders are not appealable unless a circuit justice or judge issues a certificate § 2253(c)(1)(A) (2006). issue 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 Fielder has not made the requisite showing. We further conclude that the district court did not abuse its discretion in 2 striking Fielder s affidavit. See Landrum v. Mitchell, 625 F.3d 905, 923-24 (6th Cir. 2010) (standard of review); Ward v. Hall, 592 F.3d 1144, 1162 (11th Cir. 2010) (same); 460 F.3d 844, 852 (7th Cir. Kingston, Eckstein 2006) v. (same). 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 this court and argument would not aid the decisional process. DISMISSED 3
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