Bernard McFadden v. State of South Carolina, No. 13-7009 (4th Cir. 2013)
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UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 13-7009 BERNARD MCFADDEN, Petitioner - Appellant, v. STATE OF SOUTH CAROLINA; Attorney General, HENRY MCMASTER, South Carolina Respondents - Appellees. Appeal from the United States District Court for the District of South Carolina, at Columbia. J. Michelle Childs, District Judge. (3:11-cv-02394-JMC) Submitted: October 23, 2013 Decided: October 25, 2013 Before SHEDD, KEENAN, and WYNN, Circuit Judges. Dismissed by unpublished per curiam opinion. Bernard McFadden, Appellant Pro Se. Unpublished opinions are not binding precedent in this circuit. PER CURIAM: Bernard McFadden 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 (2006) petition and the court s order denying his Fed. R. Civ. P. 59(e) motion. judge The order is not appealable unless a circuit justice or issues a certificate § 2253(c)(1)(A) (2006). issue absent a of 28 U.S.C. A certificate of appealability will not substantial constitutional right. appealability. 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 McFadden has not made the requisite showing. Accordingly, we deny a certificate of appealability and dismiss the appeal. We dispense with oral argument 2 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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