Malloy v. Warden, Lee Correctional Institution , 349 F. App'x 831 ( 2009 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 09-6701
DAN TEMPLE, JR.,
Petitioner - Appellant,
v.
SCDC DEPARTMENT OF CORRECTIONAL; WARDEN T. RILEY, TRCI,
Respondents - Appellees.
Appeal from the United States District Court for the District of
South Carolina, at Beaufort. Terry L. Wooten, District Judge.
(9:08-cv-00692-TLW)
Submitted: August 13, 2009 Decided: November 3, 2009
Before NIEMEYER and DUNCAN, Circuit Judges, and HAMILTON, Senior
Circuit Judge.
Dismissed by unpublished per curiam opinion.
Dan Temple, Jr., Appellant Pro Se. William Edgar Salter, III,
Assistant Attorney General, Columbia, South Carolina, for
Appellees.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Dan Temple, Jr. 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.”
28 U.S.C. § 2253(c)(2) (2006). A prisoner satisfies this
standard by demonstrating that reasonable jurists would find
that any assessment of the constitutional claims by the district
court is debatable or wrong and that any dispositive procedural
ruling by the district court is likewise debatable. 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, 683-84 (4th
Cir. 2001). We have independently reviewed the record and
conclude Temple has not made the requisite showing.
Accordingly, we deny a certificate of appealability and dismiss
the appeal. We also deny Temple’s motion for rehearing and for
a determination of fact and law. 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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