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63 F. App'x 734

Perry v. Stamey

U.S. Courts of Appeals

Decided May 22, 2003

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U.S. Courts of Appeals · decided 2003-05-22

Applies 28 U.S.C. § 2253 (Antiterrorism and Effective Death Penalty Act of 1996) · 28 U.S.C. § 2254 (Antiterrorism and Effective Death Penalty Act of 1996)

Relies on Slack v. McDaniel · Rose v. Lee · Barajas-Aguilar v. United States

Decided 2003-05-22

¶1 Dismissed by unpublished PER CURIAM opinion.

PER CURIAM:

¶2 Terrence Bernard Perry, a state prisoner, seeks to appeal the district court’s order accepting the recommendation of the magistrate judge and denying relief on his petition filed under 28 U.S.C. § 2254 (2000). This court may only grant a certificate of appealability if the appellant makes a substantial showing of the denial of a constitutional right. 28 U.S.C. § 2253(c)(2) (2000). When, as here, a district court dismisses a habeas petition on procedural grounds, a certificate of appeal-ability will not issue unless the petitioner can demonstrate both “(1) ‘that jurists of reason would find it debatable whether the petition states a valid claim of the denial of a constitutional right’ and (2) ‘that jurists of reason would find it debatable whether the district court was correct in its procedural ruling.’ ” Rose v. Lee, 252 F.3d 676, 684 (4th Cir.) (quoting Slack v. McDaniel, 529 U.S. 473, 484, 120 S.Ct. 1595, 146 L.Ed.2d 542 (2000)), cert. denied, 534 U.S. 941, 122 S.Ct. 318, 151 L.Ed.2d 237 (2001). We have independently reviewed the record and conclude that Perry 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 the court and argument would not aid the decisional process.

¶3 DISMISSED.

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