Lewis v. Warden, Lieber , 145 F. App'x 438 ( 2005 )


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  •                             UNPUBLISHED
    UNITED STATES COURT OF APPEALS
    FOR THE FOURTH CIRCUIT
    No. 05-6964
    JAMES J. LEWIS, JR.,
    Petitioner - Appellant,
    versus
    WARDEN, LIEBER CORRECTIONAL INSTITUTE,
    Respondent - Appellee.
    Appeal from the United States District Court for the District of
    South Carolina, at Greenville. R. Bryan Harwell, District Judge.
    (CA-04-526)
    Submitted: September 29, 2005             Decided:   October 11, 2005
    Before WILKINSON, KING, and GREGORY, Circuit Judges.
    Dismissed by unpublished per curiam opinion.
    James J. Lewis, Jr., Appellant Pro Se. Donald John Zelenka, Chief
    Deputy Attorney General, Columbia, South Carolina, for Appellee.
    Unpublished opinions are not binding precedent in this circuit.
    See Local Rule 36(c).
    PER CURIAM:
    James J. Lewis, Jr. 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 habeas corpus
    proceeding in which the detention complained of arises out of
    process issued by a state court 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 for claims
    addressed by a district court on the merits absent “a substantial
    showing of the denial of a constitutional right.”        
    28 U.S.C. § 2253
    (c)(2) (2000).   As to claims dismissed by a district court
    solely on procedural grounds, a certificate of appealability will
    not issue unless the petitioner can demonstrate both “(1) ‘that
    jurists of reason would find it debatable whether the petition
    states a valid claim of the denial of a constitutional right’ and
    (2) ‘that jurists of reason would find it debatable whether the
    district court was correct in its procedural ruling.’”     Rose v.
    Lee, 
    252 F.3d 676
    , 684 (4th Cir. 2001) (quoting Slack v. McDaniel,
    
    529 U.S. 473
    , 484 (2000)).    We have independently reviewed the
    record and conclude that Lewis has not satisfied either standard.
    See Miller-El v. Cockrell, 
    537 U.S. 322
    , 336 (2003).   Accordingly,
    we deny leave to proceed in forma pauperis, deny a certificate of
    appealability, and dismiss the appeal.    See 
    28 U.S.C. § 2253
    (c)
    - 2 -
    (2000). 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
    - 3 -
    

Document Info

Docket Number: 05-6964

Citation Numbers: 145 F. App'x 438

Judges: Gregory, King, Per Curiam, Wilkinson

Filed Date: 10/11/2005

Precedential Status: Non-Precedential

Modified Date: 8/7/2023