Davison v. Warden of Lee Correctional Institution, (4th Cir. 2011)

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UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

No. 10-7403

MICHAEL E. DAVISON,

Petitioner - Appellant,

v.

WARDEN OF LEE CORRECTIONAL INSTITUTION,

Respondent - Appellee,

and

JON OZMINT,

Respondent.

Appeal from the United States District Court for the District of

South Carolina, at Aiken. Terry L. Wooten, District Judge.

(1:09-cv-02985-TLW)

Submitted: April 28, 2011 Decided: May 2, 2011

Before DAVIS, KEENAN, and WYNN, Circuit Judges.

Dismissed by unpublished per curiam opinion.

Michael E. Davison, Appellant Pro Se. Erin Mary Farrell, Daniel

Roy Settana, Jr., MCKAY, CAUTHEN, SETTANA & STUBLEY, P.A.,

Columbia, South Carolina, for Appellee.

Unpublished opinions are not binding precedent in this circuit.

PER CURIAM: Michael E. Davison 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 (2006) petition. The order is not appealable unless a circuit justice or judge issues a certificate of appealability. 28 U.S.C.

§ 2253(c)(1) (2006). A certificate of appealability will not issue absent "a substantial showing of the denial of a constitutional right." 28U.S.C. § 2253(c)(2) (2006). 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 Davison has not made the requisite showing.

Accordingly, we deny his motion for 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 the court and argument would not aid the decisional process.