U.S. Court of Appeals for the Fourth Circuit, 2005

Avery v. Bazzle

Avery v. Bazzle
U.S. Court of Appeals for the Fourth Circuit · Decided August 22, 2005 · Motz, Duncan, Hamilton
141 F. App'x 188

Avery v. Bazzle

Opinion

PER CURIAM:

In No. 05-6395, Charles Avery seeks to appeal the district court’s order accepting a magistrate judge’s recommendation to dismiss his 28 U.S.C. § 2254 (2000) petition without prejudice for failure to exhaust state remedies. In No. 05-6539, Avery seeks to appeal the district court’s order denying his motion for a certificate of appealability. An appeal may not be taken from the final order in a § 2254 proceeding unless a circuit justice or judge issues a certificate of appealability. 28 *189 U.S.C. § 2253(e)(1) (2000). A certificate of appealability -will not issue for claims addressed by a district court absent “a substantial showing of the denial of a constitutional right.” 28 U.S.C. § 2253(c)(2) (2000). A prisoner satisfies this standard by demonstrating that reasonable jurists would find both that the district court’s assessment of his constitutional claims is debatable or wrong and that any dispositive procedural rulings by the district court are also debatable or wrong. See Miller-El v. Cockrell, 537 U.S. 322, 338, 123 S.Ct. 1029, 154 L.Ed.2d 931 (2003); Slack v. McDaniel, 529 U.S. 473, 484, 120 S.Ct. 1595, 146 L.Ed.2d 542 (2000); Rose v. Lee, 252 F.3d 676, 683 (4th Cir. 2001). We have independently reviewed the record and conclude that Avery has not made the requisite showing. Accordingly, we deny a certificate of appealability and dismiss the appeals. 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

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