Marcus Turner v. Keith Whitener

Filing

UNPUBLISHED PER CURIAM OPINION filed. Motion disposition in opinion--granting Motion to amend [999557417-2]; denying Motion to proceed in forma pauperis (FRAP 24) [999498519-2]; denying a certificate of appealability. Originating case number: 1:11-cv-01107-LPA. Copies to all parties and the district court/agency. [999586650]. Mailed to: Marcus Turner. [14-7877]

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UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT

No. 14-7877

MARCUS LAVERN TURNER,
Petitioner - Appellant,
v.
KEITH WHITENER,
Respondent - Appellee.

Appeal from the United States District Court for the Middle
District of North Carolina, at Greensboro.
L. Patrick Auld,
Magistrate Judge. (1:11-cv-01107-LPA)

Submitted:

April 28, 2015

Before KEENAN and
Circuit Judge.

HARRIS,

Decided:

Circuit

Judges,

and

May 20, 2015

DAVIS,

Senior

Dismissed by unpublished per curiam opinion.

Bruce Tracy Cunningham, Jr., LAW OFFICE OF BRUCE T. CUNNINGHAM,
JR., Southern Pines, North Carolina, for Appellant.
Clarence
Joe DelForge, III, NORTH CAROLINA DEPARTMENT OF JUSTICE,
Raleigh, North Carolina, for Appellee.

Unpublished opinions are not binding precedent in this circuit.

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PER CURIAM:
Marcus Lavern Turner 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.

28

U.S.C.

A certificate of appealability will not

substantial

constitutional right.”

See

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
Turner

has

not

made

the

requisite

showing.

Accordingly,

although we grant Turner’s motion to amend, we deny leave to
proceed in forma pauperis, deny a certificate of appealability,
and dismiss the appeal.

We dispense with oral argument because

the facts and legal contentions are adequately presented in the
2

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materials

before

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this

Court

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and

argument

would

not

aid

the

decisional process.
DISMISSED

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