James Austin v. State of North Carolina

Filing

UNPUBLISHED PER CURIAM OPINION filed. Motion disposition in opinion--denying Motion to proceed in forma pauperis (FRAP 24) [999489995-2] Originating case number: 3:14-cv-00617-FDW Copies to all parties and the district court/agency. [999586695]. Mailed to: James Austin. [14-7738]

Appeal: 14-7738

Doc: 8

Filed: 05/20/2015

Pg: 1 of 3

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT

No. 14-7738

JAMES TERRELL AUSTIN,
Petitioner - Appellant,
v.
STATE OF NORTH CAROLINA; MIKE BALL,
Respondents - Appellees.

Appeal from the United States District Court for the Western
District of North Carolina, at Charlotte.
Frank D. Whitney,
Chief District Judge. (3:14-cv-00617-FDW)

Submitted:

April 24, 2015

Decided:

May 20, 2015

Before WILKINSON and HARRIS, Circuit Judges, and DAVIS, Senior
Circuit Judge.

Dismissed by unpublished per curiam opinion.

James Terrell Austin, Appellant Pro Se.

Unpublished opinions are not binding precedent in this circuit.

Appeal: 14-7738

Doc: 8

Filed: 05/20/2015

Pg: 2 of 3

PER CURIAM:
James Terrell Austin seeks to appeal the district court’s
order denying relief on his 28 U.S.C. § 2254 (2012) petition.
The order is not appealable unless a circuit justice or judge
issues

a

certificate

§ 2253(c)(1)(A) (2012).
issue

absent

“a

of

appealability.

U.S.C.

A certificate of appealability will not

substantial

constitutional right.”

28

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
Austin 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

2

Appeal: 14-7738

Doc: 8

Filed: 05/20/2015

Pg: 3 of 3

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

3