Donald Westmoreland v. Ennis Oate

Filing

UNPUBLISHED PER CURIAM OPINION filed. Motion disposition in opinion--denying Motion certificate of appealability (Local Rule 22(a)) [998833227-2]; denying Motion to proceed in forma pauperis (FRAP 24) [998843168-2]. Originating case number: 1:10-cv-00705-CCE-LPA. Copies to all parties and the district court/agency. [998878942]. Mailed to: Donald Westmoreland. [12-6681]

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UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT

No. 12-6681

DONALD WESTMORELAND,
Petitioner – Appellant,
v.
ENNIS T. OATES,
Respondent - Appellee.

Appeal from the United States District Court for the Middle
District of North Carolina, at Greensboro. Catherine C. Eagles,
District Judge. (1:10-cv-00705-CCE-LPA)

Submitted:

June 14, 2012

Decided: June 20, 2012

Before WILKINSON, NIEMEYER, and KEENAN, Circuit Judges.

Dismissed by unpublished per curiam opinion.

Donald Westmoreland, Appellant Pro Se. Clarence Joe DelForge,
III, NORTH CAROLINA DEPARTMENT OF JUSTICE, 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Unpublished opinions are not binding precedent in this circuit.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:
Donald
court’s
judge

order
and

petition.
or

judge

Westmoreland

accepting

denying

relief

to

appeal

recommendation

on

his

28

of

U.S.C.

the
the
§

district
magistrate

2254

(2006)

The order is not appealable unless a circuit justice
issues

a

certificate

§ 2253(c)(1)(A) (2006).
issue

the

seeks

absent

“a

appealability.

28

U.S.C.

A certificate of appealability will not

substantial

constitutional right.”

of

showing

of

the

denial

28 U.S.C. § 2253(c)(2) (2006).

of

a

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

Cockrell,

(2000);

(2003).

see

Miller-El

v.

537

U.S.

322,

336-38

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

Westmoreland

has

not

made

the

requisite

showing.

Accordingly, we deny Westmoreland’s motion for a certificate of
appealability,

deny

dismiss the appeal.

leave

to

proceed

in

forma

pauperis,

and

We dispense with oral argument because the
2

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facts

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and

materials

legal
before

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contentions

are

adequately

the

and

argument

court

presented

would

not

in

the

aid

the

decisional process.

DISMISSED

3