Bernard McFadden v. Warden of Kershaw Correctional, No. 12-7618 (4th Cir. 2012)
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UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 12-7618 BERNARD MCFADDEN, Petitioner - Appellant, v. WARDEN OF KERSHAW CORRECTIONAL INSTITUTION, Respondent Appellee, and THE STATE OF SOUTH CAROLINA; HENRY MCMASTER, South Carolina Attorney General, Respondents. Appeal from the United States District Court for the District of South Carolina, at Columbia. J. Michelle Childs, District Judge. (3:11-cv-00959-JMC) Submitted: December 20, 2012 Decided: December 26, 2012 Before SHEDD, KEENAN, and WYNN, Circuit Judges. Dismissed by unpublished per curiam opinion. Bernard McFadden, Appellant Pro Se. Unpublished opinions are not binding precedent in this circuit. PER CURIAM: Bernard McFadden seeks to appeal the district court s order accepting the recommendation of the magistrate judge and dismissing his 28 U.S.C. § 2254 (2006) petition for failure to exhaust unless state a court circuit appealability. remedies. justice or The judge order is issues a not appealable certificate 28 U.S.C. § 2253(c)(1)(A) (2006). of A certificate of appealability will not issue absent a substantial showing of the denial of a constitutional right. (2006). When the district court denies relief on the merits, a prisoner satisfies this reasonable jurists would assessment of constitutional wrong. 28 U.S.C. § 2253(c)(2) the standard find by that demonstrating the claims district is that court s debatable or 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 McFadden has not made the requisite showing. Accordingly, we deny McFadden s motion for a certificate of appealability and dismiss the appeal. facts and legal We dispense with oral argument because the contentions are 2 adequately presented in the materials before this court and argument would not aid the decisional process. DISMISSED 3
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