Sullivan v. Smith , 174 F. App'x 783 ( 2006 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 06-6300
DAVID FERRELL SULLIVAN,
Petitioner - Appellant,
versus
RICHARD SMITH, Warden, Tyger River
Correctional Institution; HENRY MCMASTERS,
Attorney General of South Carolina,
Respondents - Appellees.
Appeal from the United States District Court for the District of
South Carolina, at Greenville. Henry F. Floyd, District Judge.
(6:05-730-HFF)
Submitted: March 30, 2006 Decided: April 10, 2006
Before TRAXLER, GREGORY, and SHEDD, Circuit Judges.
Dismissed by unpublished per curiam opinion.
David Farrell Sullivan, Appellant Pro Se.
Unpublished opinions are not binding precedent in this circuit.
See Local Rule 36(c).
PER CURIAM:
David Sullivan seeks to appeal the district court’s order
adopting the magistrate judge’s recommendation to dismiss without
prejudice Sullivan’s 28 U.S.C. § 2254 (2000) petition, as well as
the court’s denial of his motion for reconsideration. These orders
are 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.” 28 U.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 or
wrong and that any dispositive procedural ruling by the district
court is likewise debatable. 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 Sullivan has
not made the requisite showing. Accordingly, we deny a certificate
of appealability and dismiss the appeal. Further, we deny
Sullivan’s motion to authorize the preparation of transcripts at
government expense. We dispense with oral argument, because the
facts and legal contentions are adequately presented in the
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materials before the court and argument would not aid the
decisional process.
DISMISSED
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