Smith v. Mitchell, (4th Cir. 2006)

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UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

No. 05-7124

JIMMY HAROLD SMITH,

Plaintiff - Appellant,

versus

DOUG MITCHELL, Superintendent,

Defendant - Appellee.

Appeal from the United States District Court for the Western

District of North Carolina, at Asheville. Graham C. Mullen, Senior

District Judge. (1:02-cv-282)

Submitted: August 24, 2006 Decided: August 28, 2006

Before KING, SHEDD, and DUNCAN, Circuit Judges.

Dismissed by unpublished per curiam opinion.

Jimmy Harold Smith, Appellant Pro Se. Sandra Wallace-Smith,

Assistant Attorney General, Raleigh, North Carolina, for Appellee.

Unpublished opinions are not binding precedent in this circuit.

See Local Rule 36(c).

PER CURIAM: Jimmy Harold Smith, a state prisoner, seeks to appeal the district court's order denying relief on his petition filed under 28U.S.C. § 2254 (2000). The order is not appealable 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." 28U.S.C. § 2253(c)(2) (2000). A prisoner satisfies this standard by demonstrating that reasonable jurists would find that the district court's assessment of his constitutional claims is debatable and that any dispositive procedural rulings by the district court are also debatable or wrong. See Miller-El v. Cockrell, 537 U.S. 322, 336 (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 Smith has not made the requisite showing.

Accordingly, we deny Smith's motions 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.

DISMISSED

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