Opinion
No. 10-6602.
Submitted: June 17, 2010.
Decided: June 28, 2010.
Appeal from the United States District Court for the District of South Carolina, at Rock Hill. Patrick Michael Duffy, Senior District Judge. (0:09-cv-00755-PMD).
Brian Daniels, Appellant Pro Se. Donald John Zelenka, Deputy Assistant Attorney General, Alphonso Simon, Jr., Office of the Attorney General of South Carolina, Columbia, South Carolina, for Appellee.
Before MOTZ and KING, Circuit Judges, and HAMILTON, Senior Circuit Judge.
Dismissed by unpublished PER CURIAM opinion.
Brian Daniels seeks to appeal the district court's order accepting the recommendation of the magistrate judge and dismissing as untimely 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). When the district court denies relief on the merits, a prisoner satisfies this standard by demonstrating that reasonable jurists would find that the district court's assessment of the constitutional claims is debatable or wrong. Slack v. McDaniel, 529 U.S. 473, 484, 120 S.Ct. 1595, 146 L.Ed.2d 542 (2000); see Miller-El v. Cockrell, 537 U.S. 322, 336-38, 123 S.Ct. 1029, 154 L.Ed.2d 931 (2003). When the district court denies relief on procedural grounds, the prisoner must demonstrate both that the dispositive procedural ruling is debatable, and that the petition states a debatable claim of the denial of a constitutional right. Slack, 529 U.S. at 484-85, 120 S.Ct. 1595. We have independently reviewed the record and conclude that Daniels 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.
Our conclusion that Daniels has not made the showing necessary to warrant issuance of a certificate of appealability is supported by the Supreme Court's recent opinion in Holland v. Florida, ___U.S. ___, 130 S.Ct. 2549, 177 L.Ed.2d 130 (2010).
DISMISSED.