Opinion
No. 12-7366
11-08-2012
JAY WALTER TATE, JR., Petitioner - Appellant, v. WARDEN EAGLETON, Respondent - Appellee.
Jay Walter Tate, Jr., Appellant Pro Se. Brendan McDonald, OFFICE OF THE ATTORNEY GENERAL OF SOUTH CAROLINA, Donald John Zelenka, Deputy Assistant Attorney General, Columbia, South Carolina, for Appellee.
UNPUBLISHED
Appeal from the United States District Court for the District of South Carolina, at Rock Hill. Timothy M. Cain, District Judge. (0:11-cv-00332-TMC) Before WYNN, FLOYD, and THACKER, Circuit Judges. Dismissed by unpublished per curiam opinion. Jay Walter Tate, Jr., Appellant Pro Se. Brendan McDonald, OFFICE OF THE ATTORNEY GENERAL OF SOUTH CAROLINA, Donald John Zelenka, Deputy Assistant Attorney General, Columbia, South Carolina, for Appellee. Unpublished opinions are not binding precedent in this circuit. PER CURIAM:
Jay Walter Tate, Jr., 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)(A) (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 (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 Tate 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