Dwayne Clark v. Warden Busch, No. 15-7714 (4th Cir. 2016)
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UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 15-7714 DWAYNE R. CLARK, Petitioner - Appellant, v. WARDEN BUSCH, Respondent - Appellee. Appeal from the United States District Court for the District of South Carolina, at Beaufort. Timothy M. Cain, District Judge. (9:14-cv-02002-TMC) Submitted: February 25, 2016 Before SHEDD and Circuit Judge. HARRIS, Circuit Decided: Judges, and March 2, 2016 DAVIS, Senior Dismissed by unpublished per curiam opinion. Dwayne R. Clark, Appellant Pro Se. William Edgar Salter, III, Assistant Attorney General, Donald John Zelenka, Senior Assistant Attorney General, Columbia, South Carolina, for Appellee. Unpublished opinions are not binding precedent in this circuit. PER CURIAM: Dwayne R. Clark seeks to appeal the district court’s order accepting the magistrate judge’s recommendation to grant Respondent’s summary judgment motion on Clark’s 28 U.S.C. § 2254 (2012) petition and he has filed an application to proceed in forma pauperis. unless a The district court’s order is not appealable circuit justice judge appealability. See certificate appealability of 28 or U.S.C. issues a certificate § 2253(c)(1)(A) will not (2012). issue absent of A “a substantial showing of the denial of a constitutional right.” 28 U.S.C. § 2253(c)(2) (2012). relief on the demonstrating district merits, that court’s debatable or a When the district court denies prisoner reasonable assessment wrong. Slack satisfies jurists this would of the v. McDaniel, standard find constitutional 529 U.S. by that the claims is 473, 484 (2000); see Miller-El v. Cockrell, 537 U.S. 322, 336-38 (2003). 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 Clark has not made the requisite showing. leave to proceed in forma pauperis, 2 Accordingly, we deny 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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