Hawks v. Mitchell, (4th Cir. 2005)

Docket Number: 05-6048

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UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

No. 05-6048

FRIEL MONROE HAWKS,

Petitioner - Appellant,

versus

DAVID MITCHELL,

Respondent - Appellee.

Appeal from the United States District Court for the Middle

District of North Carolina, at Durham. James A. Beaty, Jr.,

District Judge. (CA-04-204-1)

Submitted: April 14, 2005 Decided: April 20, 2005

Before WILKINSON, NIEMEYER, and MICHAEL, Circuit Judges.

Dismissed by unpublished per curiam opinion.

Friel Monroe Hawks, Appellant Pro Se. Clarence Joe DelForge, III,

NORTH CAROLINA DEPARTMENT OF JUSTICE, Raleigh, North Carolina, for

Appellee.

Unpublished opinions are not binding precedent in this circuit.

See Local Rule 36(c).

PER CURIAM: Friel Monroe Hawks seeks to appeal the district court's order accepting the recommendation of the magistrate judge and denying relief on his petition filed under 28 U.S.C. § 2254 (2000).

An appeal may not be taken from the final order in a § 2254 proceeding unless a circuit justice or judge issues a certificate of appealability. 28 U.S.C. § 2253(c)(1) (2000). 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) (2000).

A prisoner satisfies this standard by demonstrating that reasonable jurists would find both that the district court's assessment of the constitutional claims is debatable or wrong and that any dispositive procedural rulings by the district court are debatable or wrong. See Miller-El v. Cockrell,537 U.S. 322, 336-38 (2003); Slack v. McDaniel,529 U.S. 473, 484 (2000); Rose v. Lee, 252 F.3d 676, 683 (4th Cir. 2001). We have independently reviewed the record and conclude that Hawks has not made the requisite showing.

Accordingly, we 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 the court and argument would not aid the decisional process.

DISMISSED