Harvin v. Rushton

Full title: LARRY G. HARVIN, Petitioner - Appellant, v. COLIE L. RUSHTON; HENRY…

Court: UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT

Date published: Feb 28, 2012

467 F. App'x 214 (4th Cir. 2012)

Opinion

No. 11-7384

02-28-2012

LARRY G. HARVIN, Petitioner - Appellant, v. COLIE L. RUSHTON; HENRY MCMASTER, Respondents - Appellees.

PER CURIAM

UNPUBLISHED

Appeal from the United States District Court for the District of South Carolina, at Columbia. G. Ross Anderson, Jr., Senior District Judge. (3:03-cv-00688-GRA)

Before MOTZ, DAVIS, and DIAZ, Circuit Judges.

Dismissed by unpublished per curiam opinion.

Larry G. Harvin, Appellant Pro Se. Donald John Zelenka, Deputy Assistant Attorney General, Columbia, South Carolina, for Appellees.

Unpublished opinions are not binding precedent in this circuit. PER CURIAM:

Larry G. Harvin seeks to appeal the district court's order denying his Fed. R. Civ. P. 60(b) motion for reconsideration of the district court's order 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)(A) (2006); Reid v. Angelone, 369 F.3d 363, 369 (4th Cir. 2004). 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 (2000); see Miller-El v. Cockrell, 537 U.S. 322, 336-38 (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. We have independently reviewed the record and conclude that Harvin 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.

DISMISSED