Robert Lee Foster v. Warden of Tyger River Correctional Institution

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 18-7080
ROBERT LEE FOSTER,
Petitioner - Appellant,
v.
WARDEN OF TYGER RIVER CORRECTIONAL INSTITUTION,
Respondent - Appellee,
and
THE STATE OF SOUTH CAROLINA,
Respondent.
Appeal from the United States District Court for the District of South Carolina, at
Beaufort. Timothy M. Cain, District Judge. (9:17-cv-00945-TMC)
Submitted: January 4, 2019 Decided: January 10, 2019
Before WILKINSON, KING, and DUNCAN, Circuit Judges.
Dismissed by unpublished per curiam opinion.
Robert Lee Foster, Appellant Pro Se.
Unpublished opinions are not binding precedent in this circuit.

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PER CURIAM:
Robert Lee Foster seeks to appeal the district court’s orders dismissing his 28
U.S.C. § 2254 (2012) petition without prejudice as successive and for failure to exhaust
his state court remedies. The orders are not appealable unless a circuit justice or judge
issues a certificate of appealability. See 28 U.S.C. § 2253(c)(1)(A) (2012). 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 Foster 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

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