Brian Strebe v. Director, Virginia DOC

Filing

UNPUBLISHED PER CURIAM OPINION filed. Motion disposition in opinion--denying Motion to proceed in forma pauperis (FRAP 24) [999136301-2]; denying for certificate of appealability Originating case number: 1:12-cv-01476-TSE-JFA Copies to all parties and the district court/agency. [999181151]. Mailed to: Brian David Strebe. [13-6680]

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UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT

No. 13-6680

BRIAN DAVID STREBE,
Petitioner – Appellant,
v.
DIRECTOR, VIRGINIA DEPT. OF CORRECTIONS,
Respondent - Appellee.

Appeal from the United States District Court for the Eastern
District of Virginia, at Alexandria.
T. S. Ellis, III, Senior
District Judge. (1:12-cv-01476-TSE-JFA)

Submitted:

August 22, 2013

Decided:

August 27, 2013

Before MOTZ, DIAZ, and FLOYD, Circuit Judges.

Dismissed by unpublished per curiam opinion.

Brian David Strebe, Appellant Pro Se.

Unpublished opinions are not binding precedent in this circuit.

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PER CURIAM:
Brian
court’s

order

David

Strebe

denying

seeks

to

reconsideration

appeal
of

the

the

district

court’s

order

treating his Fed. R. Civ. P. 60(b) motion as a successive 28
U.S.C. § 2254 (2006) petition, and dismissing it on that basis.
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); Reid v. Angelone, 369 F.3d 363, 369 (4th
Cir.

2004).

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) (2006).

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

debatable

or

assessment

wrong.

Slack

of

the

constitutional

v.

McDaniel,

529

U.S.

claims

is

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 Strebe has not made the requisite showing.

Accordingly, we

deny leave to proceed in forma pauperis, deny a certificate of
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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

3