Marcus Brown v. Roy Cooper

Filing

UNPUBLISHED PER CURIAM OPINION filed. Motion disposition in opinion--denying Motion to proceed in forma pauperis (FRAP 24) [999236965-2] Originating case number: 5:13-cv-00074-RJC Copies to all parties and the district court/agency. [999266150]. Mailed to: Marcus Brown. [13-7721]

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UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT

No. 13-7721

MARCUS RANDALL BROWN,
Petitioner - Appellant,
v.
ROY COOPER,
Respondent - Appellee.

Appeal from the United States District Court for the Western
District of North Carolina, at Statesville.
Robert J. Conrad,
Jr., District Judge. (5:13-cv-00074-RJC)

Submitted:

December 19, 2013

Decided:

December 24, 2013

Before SHEDD, DAVIS, and FLOYD, Circuit Judges.

Affirmed in part; dismissed in part by unpublished per curiam
opinion.

Marcus Randall Brown, Appellant Pro Se.

Unpublished opinions are not binding precedent in this circuit.

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PER CURIAM:
Marcus Randall Brown filed a petition under 28 U.S.C.
§ 1651(a) (2006) for a writ of error coram nobis and a motion to
appoint

counsel

in

Eastern District

the

of

United

North

States

Carolina.

District
In

the

Court

for

petition,

the

Brown

sought to set aside his 1996 North Carolina state convictions
for possession of implements of housebreaking and presence in a
building with intent to commit a felony.

The Eastern District

of North Carolina transferred the petition to the United States
District Court for the Western District of North Carolina, the
district court below.
On July 10, 2013, the district court entered an order
denying the motion to appoint counsel, denying the petition for
a writ of error coram nobis on the basis that federal district
courts lack the authority to issue writs of error coram nobis to
set aside state convictions, and closing the case.

Within the

twenty-eight-day period prescribed by Fed. R. Civ. P. 59(e) for
filing

motions

to

alter

or

amend

judgment,

Brown

moved

the

district court to reconsider its conclusion in the July 10 order
regarding

its

alternatively,

authority
to

to

construe

grant
his

coram

nobis

challenges

to

relief

or,

the

1996

convictions as being presented through a petition for a writ of
habeas corpus under 28 U.S.C. § 2254 (2006).

The district court

denied the motion in part and granted the motion in part—denying
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reconsideration

of

the

July

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10

order

but

construing

Brown’s

coram nobis claims as arising under 28 U.S.C. § 2254—and denied
relief

on

the

October 4, 2013.

§ 2254

petition

by

order

entered

on

Brown timely appealed the October 4 order.

On appeal, we confine our review to the issues raised
in the Appellant’s brief.

See 4th Cir. R. 34(b).

Because

Brown’s informal brief does not challenge the July 10 order or
the

district

court’s

ruling

in

the

October

4

order

denying

reconsideration, Brown has forfeited appellate review of that
order and ruling.

We therefore grant leave to proceed in forma

pauperis and affirm that order and ruling.
With

respect

to

the

ruling

in

the

October

4

order

denying § 2254 relief, that ruling 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.”

28 U.S.C. § 2253(c)(2).

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

constitutional claims is debatable or wrong.

assessment

of

the

Slack v. McDaniel,

529 U.S. 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
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dispositive
petition

procedural

states

a

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ruling

is

debatable

constitutional right.

debatable,

claim

of

and

the

that

denial

the

of

a

Slack, 529 U.S. at 484-85.

We have independently reviewed the record and conclude
that Brown has not made the requisite showing.

Accordingly, we

deny a certificate of appealability and dismiss the appeal of
that

portion

of

We dispense

with

contentions

are

the
oral

October

4

argument

adequately

order

denying

because

presented

in

§ 2254

the

facts

the

materials

relief.

and

legal
before

this court and argument would not aid the decisional process.

AFFIRMED IN PART;
DISMISSED IN PART

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