Opinion
22-7379
04-28-2023
MARCUS ALBINUS JOSEPH, a/k/a Marcus A. Joseph, a/k/a Marcus Albines Joseph, Petitioner - Appellant, v. WARDEN WALLACE, Kirkland Correctional Institution, Respondent - Appellee.
Marcus Albinus Joseph, Appellant Pro Se.
UNPUBLISHED
Submitted: April 25, 2023
Appeal from the United States District Court for the District of South Carolina, at Anderson. Richard Mark Gergel, District Judge. (8:22-cv-03282-RMG)
Marcus Albinus Joseph, Appellant Pro Se.
Before GREGORY, Chief Judge, THACKER, Circuit Judge, and MOTZ, Senior Circuit Judge.
Dismissed by unpublished per curiam opinion.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Marcus Albinus Joseph, a state prisoner, seeks to appeal the district court's order accepting the magistrate judge's recommendation, construing Joseph's 28 U.S.C. § 2241 petition as a 28 U.S.C. § 2254 petition, and dismissing the petition as unauthorized and successive. The order is not appealable unless a circuit justice or judge issues a certificate of appealability. 28 U.S.C. § 2253(c)(1)(A). 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). When the district court denies relief on the merits, a prisoner satisfies this standard by demonstrating that reasonable jurists could find the district court's assessment of the constitutional claims debatable or wrong. See Buck v. Davis, 580 U.S. 100, 115-17 (2017). 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. Gonzalez v. Thaler, 565 U.S. 134, 140-41 (2012) (citing Slack v. McDaniel, 529 U.S. 473, 484 (2000)).
We have independently reviewed the record and conclude that Joseph 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 this court and argument would not aid the decisional process.
DISMISSED