Brian Posey v. Warden Perry Correctional, No. 18-6676 (4th Cir. 2018)

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UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 18-6676 BRIAN KEITH POSEY, Petitioner - Appellant, v. WARDEN PERRY CORRECTIONAL INSTITUTION, Respondent - Appellee, and ALAN WILSON, Respondent. Appeal from the United States District Court for the District of South Carolina, at Orangeburg. David C. Norton, District Judge. (5:17-cv-02851-DCN) Submitted: November 19, 2018 Decided: November 27, 2018 Before NIEMEYER and THACKER, Circuit Judges, and SHEDD, Senior Circuit Judge. Dismissed by unpublished per curiam opinion. Brian Keith Posey, Appellant Pro Se. Unpublished opinions are not binding precedent in this circuit. 2 PER CURIAM: Brian Keith Posey seeks to appeal the district court’s order accepting the recommendation of the magistrate judge and dismissing as untimely his 28 U.S.C. § 2254 (2012) petition. The order is not appealable unless a circuit justice or judge issues a certificate of appealability. 28 U.S.C. § 2253(c)(1)(A) (2012). 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). 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 (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 Posey has not made the requisite showing. See 4th Cir. R. 34(b); see also Jackson v. Lightsey, 775 F.3d 170, 177 (4th Cir. 2014) (noting importance of Rule 34(b) and reiterating that court limits its review to issues preserved in informal brief). Accordingly, we deny Posey’s motion for 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 3 adequately presented in the materials before this court and argument would not aid the decisional process. DISMISSED 4