Jose Herrera v. Joseph McFadden, No. 16-6600 (4th Cir. 2016)
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UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 16-6600 JOSE ANGEL HERRERA, Petitioner - Appellant, v. JOSEPH MCFADDEN, Warden, Respondent - Appellee. Appeal from the United States District Court for the District of South Carolina, at Greenville. Margaret B. Seymour, Senior District Judge. (6:15-cv-00505-MBS) Submitted: October 18, 2016 Decided: October 20, 2016 Before WILKINSON, KING, and FLOYD, Circuit Judges. Dismissed by unpublished per curiam opinion. Jose Angel Herrera, Appellant Pro Se. Donald John Zelenka, Senior Assistant Attorney General, James Anthony Mabry, Assistant Attorney General, Columbia, South Carolina, for Appellee. Unpublished opinions are not binding precedent in this circuit. PER CURIAM: Jose Angel Herrera seeks to appeal the district court’s order accepting the recommendation of the magistrate judge and denying relief on his 28 U.S.C. § 2254 (2012) petition. The order is not appealable unless a circuit justice or judge issues a certificate (2012). of appealability. 28 U.S.C. § 2253(c)(1)(A) 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) (2012). relief on the demonstrating district merits, that court’s debatable or a When the district court denies prisoner reasonable assessment wrong. satisfies jurists would of the v. McDaniel, Slack this standard find that the claims constitutional 529 by is U.S. 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 Herrera although has we supplemental not made grant the requisite Herrera’s informal motion brief, we for deny appealability and dismiss the appeal. 2 showing. Accordingly, leave a to file certificate a of 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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