David Leary, Jr. v. Ben Wright

Filing

UNPUBLISHED PER CURIAM OPINION filed. Motion disposition in opinion--denying Motion to proceed in forma pauperis (FRAP 24) [999224608-2]; denying for certificate of appealability Originating case number: 1:12-cv-01127-JCC-TCB Copies to all parties and the district court/agency. [999303075]. Mailed to: Leary. [13-7560]

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UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT

No. 13-7560

DAVID ALAN LEARY, JR.,
Petitioner - Appellant,
v.
BEN WRIGHT, Lead Warden,
Respondent - Appellee.

Appeal from the United States District Court for the Eastern
District of Virginia, at Alexandria. James C. Cacheris, Senior
District Judge. (1:12-cv-01127-JCC-TCB)

Submitted:

February 20, 2014

Decided:

February 25, 2014

Before DUNCAN, DIAZ, and FLOYD, Circuit Judges.

Dismissed by unpublished per curiam opinion.

David Alan Leary, Jr., Appellant Pro Se. James Milburn Isaacs,
Jr., OFFICE OF THE ATTORNEY GENERAL OF VIRGINIA, Richmond,
Virginia, for Appellee.

Unpublished opinions are not binding precedent in this circuit.

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PER CURIAM:
David Alan Leary, Jr., seeks to appeal the district
court’s

order

petition.

denying

relief

on

his

28

U.S.C.

(2012)

The order is not appealable unless a circuit justice

or judge issues a certificate of appealability.
§ 2253(c)(1)(A) (2012).
issue

§ 2254

absent

“a

A certificate of appealability will not

substantial

constitutional right.”

See 28 U.S.C.

showing

of

the

denial

28 U.S.C. § 2253(c)(2) (2012).

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 Leary 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 this court and argument would
not aid the decisional process.
DISMISSED

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