David Deshon Simms v. GARY MILLER, Superintendent

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 04-6704
DAVID DESHON SIMMS,
Petitioner - Appellant,
versus
GARY MILLER, Superintendent,
Respondent - Appellee.
Appeal from the United States District Court for the Middle
District of North Carolina, at Durham. James A. Beaty, Jr.,
District Judge. (CA-03-563-1)
Submitted: October 7, 2004 Decided: October 13, 2004
Before WIDENER, NIEMEYER, and WILLIAMS, Circuit Judges.
Dismissed by unpublished per curiam opinion.
David Deshon Simms, Appellant Pro Se. Sandra Wallace-Smith,
Assistant Attorney General, Raleigh, North Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
See Local Rule 36(c).

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PER CURIAM:
David Deshon Simms appeals from the denial of his 28
U.S.C. § 2254 (2000) petition by the district court. 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
U.S.C. § 2253(c)(1) (2000). 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) (2000). A prisoner
satisfies this standard by demonstrating that jurists of reason
would find that his constitutional claims are debatable and that
any dispositive procedural rulings by the district court are also
debatable or wrong. See Miller-El v. Cockrell, 537 U.S. 322, 336
(2003); Slack v. McDaniel, 529 U.S. 473, 484 (2000); Rose v. Lee,
252 F.3d 676, 683 (4th Cir. 2001).
We have reviewed the record and conclude that Simms has
not made the requisite showing. Accordingly, we deny a certificate
of appealability, deny leave to proceed in forma pauperis, 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 in the
decisional process.
DISMISSED

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