Joshua Paternoster-Cozart v. Harold Clarke

Filing

UNPUBLISHED PER CURIAM OPINION filed. Motion disposition in opinion--denying Motion to proceed in forma pauperis (FRAP 24) [999445297-2] Originating case number: 2:13-cv-00539-MSD-LRL Copies to all parties and the district court/agency. [999587591].. [14-7434]

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UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT

No. 14-7434

JOSHUA PATERNOSTER-COZART,
Petitioner - Appellant,
v.
HAROLD CLARKE, Director V.D.O.C.,
Respondent - Appellee.

Appeal from the United States District Court for the Eastern
District of Virginia, at Norfolk.
Mark S. Davis, District
Judge. (2:13-cv-00539-MSD-LRL)

Submitted:

February 27, 2015

Decided:

May 21, 2015

Before WYNN and DIAZ, Circuit Judges, and DAVIS, Senior Circuit
Judge.

Dismissed by unpublished per curiam opinion.

Joshua Paternoster-Cozart, Appellant Pro Se.
Richard Carson
Vorhis, Senior Assistant Attorney General, Kate Elizabeth Dwyre,
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Unpublished opinions are not binding precedent in this circuit.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:
Joshua
court’s

Paternoster-Cozart

order

accepting,

in

seeks
part,

to

the

appeal

the

district

recommendation

of

the

magistrate judge and denying relief on his 28 U.S.C. § 2254
(2012) petition.

The order is not appealable unless a circuit

justice

issues

or

judge

a

certificate

U.S.C. § 2253(c)(1)(A) (2012).

of

appealability.

28

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) (2012).

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.
On

October

Paternoster-Cozart

14,
was

2014,

while

released

this

from

appeal

was

incarceration.

pending,
We

may

address sua sponte whether an issue on appeal presents “a live
case or controversy . . . since mootness goes to the heart of
the Article III jurisdiction of the courts.”
2

Friedman’s Inc. v.

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Dunlap, 290 F.3d 191, 197 (4th Cir. 2002) (internal quotation
marks omitted).

Because Paternoster-Cozart has already served

his term of imprisonment and has not identified any collateral
consequences
regarding

of

the

it,

there

length

is

of

no

his

longer

any

confinement.

live

controversy

Therefore,

his

challenge regarding additional credit against his sentence is
moot.
Paternoster-Cozart also the challenges the district court’s
denial
filing

of

relief

of

on

his

specific

First

Amendment

objections

to

a

claim.

The

magistrate

timely
judge’s

recommendation is necessary to preserve appellate review of the
substance

of

that

recommendation

when

the

warned of the consequences of noncompliance.
Midgette, 478 F.3d 616, 621 (4th Cir. 2007).

parties

have

been

United States v.
Paternoster-Cozart

has waived appellate review by failing to file an objection to
the magistrate judge’s recommendation as to this claim after
receiving proper notice.
Finally, Paternoster-Cozart challenges the district court’s
order denying his motions for leave to alter or amend and for
the appointment of counsel.

By failing to brief these issues,

however, he has waived review of them.

See United States v. Al-

Hamdi, 356 F.3d 564, 571 n.8 (4th Cir. 2004) (“It is a well
settled rule that contentions not raised in the argument section
of the opening brief are abandoned.”).
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Accordingly, we deny leave to proceed in forma pauperis,
deny a certificate of appealability, and dismiss the appeal.
dispense

with

contentions

are

oral

argument

adequately

because

presented

in

the
the

facts

We

and

legal

materials

before

this court and argument would not aid the decisional process.

DISMISSED

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