Kevin Herriot v. Wayne McCabe

U.S. Court of Appeals for the Fourth Circuit September 21, 2021

Opinion

No. 20-6345

Plaintiff - Appellant,

WAYNE MCCABE, Warden, Kershaw Correctional Institution,

Respondent - Appellee.

Appeal from the United States District Court for the District of South Carolina, at Greenville. David C. Norton, District Judge. (6:19-cv-00803-DCN)

Submitted: August 25, 2021 Decided: September 21, 2021

Before WILKINSON, MOTZ, and RICHARDSON, Circuit Judges.

Dismissed by unpublished per curiam opinion.

Kevin Herriott, Appellant Pro Se.

Unpublished opinions are not binding precedent in this circuit.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

Kevin Herriott seeks to appeal the district court’s orders accepting the

recommendations of the magistrate judge and denying relief on Herriott’s

28 U.S.C. § 2254

petition. The orders are not appealable unless a circuit justice or judge issues a certificate

of appealability. See

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,

137 S. Ct. 759, 773-74

(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 Herriott has not made

the requisite showing. Accordingly, we deny a certificate of appealability and dismiss the

appeal. In addition, we deny Herriott’s motions for a stay and for production of documents.

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.