Melvin Funez v. Robert Lewi

Filing

UNPUBLISHED PER CURIAM OPINION filed. Motion disposition in opinion--denying Motion to proceed in forma pauperis (FRAP 24) [998926421-2]. Originating case number: 5:11-hc-02067-BO. Copies to all parties and the district court/agency. [998960089]. Mailed to: Melvin Funez. [12-7228]

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UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT

No. 12-7228

MELVIN ELPIDO MEDINA FUNEZ,
Petitioner - Appellant,
v.
ROBERT C. LEWIS; LAFAYETTE HALL,
Respondent - Appellees.

Appeal from the United States District Court for the Eastern
District of North Carolina, at Raleigh.
Terrence W. Boyle,
District Judge. (5:11-hc-02067-BO)

Submitted:

October 5, 2012

Decided:

October 16, 2012

Before SHEDD, AGEE, and KEENAN, Circuit Judges.

Dismissed by unpublished per curiam opinion.

Melvin Elpido Medina Funez, Appellant Pro Se.
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Unpublished opinions are not binding precedent in this circuit.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:
Melvin
district

Elpido

court’s

order

§ 2254 (2006) petition.

Medina

Funez

dismissing

seeks

as

to

untimely

his

appeal
28

the

U.S.C.

The order is not appealable unless a

circuit justice or judge issues a certificate of appealability.
28

U.S.C.

§ 2253(c)(1)(A)

(2006).

A

certificate

of

appealability will not issue absent “a substantial showing of
the denial of a constitutional right.”
(2006).

28 U.S.C. § 2253(c)(2)

When the district court denies relief on the merits, a

prisoner

satisfies

this

jurists

would

reasonable

standard
find

by

that

demonstrating

the

district

that

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).
denies

relief

demonstrate

both

on

procedural

that

the

When the district court

grounds,

dispositive

the

prisoner

procedural

ruling

must
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 Funez has not made the requisite showing.

Accordingly, we

deny a certificate of appealability, deny leave to proceed in
forma pauperis, and dismiss the appeal.

We dispense with oral

argument because the facts and legal contentions are adequately

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presented in the materials before the court and argument would
not aid the decisional process.

DISMISSED

3