Steven Mitchell Diver v. BUTCH JACKSON, Superintendent

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 12-7355
STEVEN MITCHELL DIVER,
Petitioner – Appellant,
v.
BUTCH JACKSON, Superintendent,
Respondent - Appellee.
Appeal from the United States District Court for the Eastern
District of North Carolina, at Raleigh. Louise W. Flanagan,
District Judge. (5:11-hc-02155-FL)
Submitted: October 22, 2012 Decided: November 6, 2012
Before WILKINSON and NIEMEYER, Circuit Judges, and HAMILTON,
Senior Circuit Judge.
Dismissed by unpublished per curiam opinion.
Steven Mitchell Diver, Appellant Pro Se. Mary Carla Hollis,
Assistant Attorney General, Raleigh, North Carolina, for
Appellee.
Unpublished opinions are not binding precedent in this circuit.

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PER CURIAM:
Steven Mitchell Diver seeks to appeal the district
court’s order denying relief on 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 Diver 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

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presented in the materials before the court and argument would
not aid the decisional process.
DISMISSED

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