Lester v. South Carolina

122 F. App'x 59

• Court: Court of Appeals for the Fourth Circuit
• Decided: February 23, 2005
• Docket: 04-7591
• Status: Unpublished

Opinion

PER CURIAM.

Steven Lester 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). The district court dismissed the motion without prejudice for failure to exhaust state court remedies. This order is not appealable unless a circuit justice or judge issues a certificate of appealability. 28 U.S.C. § 2253(c)(1) (2000). 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) (2000). A prisoner satisfies this standard by demonstrating that reasonable jurists would find that the district court’s assessment of his constitutional claims is debatable and that any dispositive procedural rulings by the district court are also debatable or wrong. See Miller-El v. Cockrell, 537 U.S. 322, 336, 123 S.Ct. 1029, 154 L.Ed.2d 931 (2003); Slack v. McDaniel, 529 U.S. 473, 484, 120 S.Ct. 1595, 146 L.Ed.2d 542 (2000); Rose v. Lee, 252 F.3d 676, 683 (4th Cir.2001).

The record demonstrates that the district court lacked jurisdiction to consider the motion as Lester failed to obtain prefiling authorization from this court to file it. * Lester’s failure to obtain prefiling authorization to file the § 2254 petition in the first instance precludes granting a certificate of appealability.

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.

DISMISSED

* Another district judge had dismissed Lester's earlier § 2254 petition as barred by the statute of limitations, and this court denied a certificate of appealability and dismissed the appeal. Lester v. South Carolina, 57 Fed. Appx. 156 (4th Cir.2003) (unpublished). The district judge’s order in that case expressly stated that the petition was denied with prejudice, but the judgment stated that dismissal was without prejudice. In light of the reasoning underlying the district court’s dismissal, we conclude that the earlier action was dismissed with prejudice.