Elson McKanic v. Warden Lewis

UNPUBLISHED

UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT

No. 19-7741

ELSON MCKANIC,

Petitioner - Appellant,

v.

WARDEN LEWIS,

Respondent - Appellee.

Appeal from the United States District Court for the District of South Carolina, at Rock
Hill. Henry M. Herlong, Jr., Senior District Judge. (0:19-cv-02680-HMH)

Submitted: May 20, 2020 Decided: August 7, 2020

Before WYNN, RICHARDSON, and RUSHING, Circuit Judges.

Dismissed by unpublished per curiam opinion.

Elson McKanic, Appellant Pro Se.

Unpublished opinions are not binding precedent in this circuit.

2

PER CURIAM:
Elson McKanic seeks to appeal the district court’s order accepting the
recommendation of the magistrate judge and dismissing McKanic’s 28 U.S.C. § 2254
(2018) petition as an unauthorized, successive § 2254 petition. The order is not appealable
unless a circuit justice or judge issues a certificate of appealability. See 28 U.S.C.
§ 2253(c)(1)(A) (2018). 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) (2018). When, as
here, 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)).
Because we did not authorize McKanic’s successive petition, we conclude that the
district court’s procedural ruling was neither wrong nor debatable. So McKanic 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 this court and argument would not aid the
decisional process.
DISMISSED