Dan Temple, Jr. v. State of South Carolina

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 13-7904
DAN TEMPLE, JR.,
Petitioner - Appellant,
v.
STATE OF SOUTH CAROLINA,
Respondent - Appellee.
Appeal from the United States District Court for the District of
South Carolina, at Beaufort. Terry L. Wooten, Chief District
Judge. (9:13-cv-02207-TLW)
Submitted: March 27, 2014 Decided: April 1, 2014
Before MOTZ, Circuit Judge, and HAMILTON and DAVIS, Senior
Circuit Judges.
Dismissed by unpublished per curiam opinion.
Daniel Temple, Jr., Appellant Pro Se.
Unpublished opinions are not binding precedent in this circuit.

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PER CURIAM:
Daniel Temple, Jr., seeks to appeal the district
court’s order accepting the recommendation of the magistrate
judge and dismissing his 28 U.S.C. § 2254 (2012) petition
because it was a second or successive petition and Temple had
not received authorization from this court. The order is not
appealable unless a circuit justice or judge issues a
certificate of appealability. 28 U.S.C. § 2253(c)(1)(A) (2012);
Reid v. Angelone, 369 F.3d 363, 369 (4th Cir. 2004). 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) (2012). 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 Temple has not made the requisite showing. Accordingly, we

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deny a certificate of appealability, deny leave to proceed in
forma pauperis, deny the motion for transcripts at government
expense and dismiss the appeal.
Additionally, we construe Temple’s notice of appeal
and informal brief as an application to file a second or
successive § 2254 petition. United States v. Winestock, 340
F.3d 200, 208 (4th Cir. 2003). In order to obtain authorization
to file a successive § 2254 petition, a prisoner must assert
claims based on either: (1) a new rule of constitutional law,
previously unavailable, made retroactive by the Supreme Court to
cases on collateral review; or (2) newly discovered evidence,
not previously discoverable by due diligence, that would be
sufficient to establish by clear and convincing evidence that,
but for constitutional error, no reasonable factfinder would
have found the petitioner guilty of the offense. 28 U.S.C.
§ 2244(b)(2) (2012). Temple’s claims do not satisfy either of
these criteria. Therefore, we deny authorization to file a
successive § 2254 petition.
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

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