John Smith v. Harold Clarke

Filing

UNPUBLISHED PER CURIAM OPINION filed. Motion disposition in opinion--denying Motion to proceed in forma pauperis (FRAP 24) [999573572-2] Originating case number: 3:13-cv-00856-HEH-RCY Copies to all parties and the district court/agency. [999627938]. Mailed to: John Smith. [15-6375]

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UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT

No. 15-6375

JOHN KEITH SMITH,
Petitioner – Appellant,
v.
HAROLD W. CLARKE, Director, VA Department of Corrections,
Respondent - Appellee.

Appeal from the United States District Court for the Eastern
District of Virginia, at Richmond.
Henry E. Hudson, District
Judge. (3:13-cv-00856-HEH-RCY)

Submitted:

July 23, 2015

Decided:

July 27, 2015

Before NIEMEYER and KING, Circuit Judges, and HAMILTON, Senior
Circuit Judge.

Dismissed by unpublished per curiam opinion.

John Keith Smith, Appellant Pro Se. David Michael Uberman, 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Unpublished opinions are not binding precedent in this circuit.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:
John Keith Smith seeks to appeal the district court’s order
accepting the 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 or judge issues a certificate
of appealability. 28 U.S.C. § 2253(c)(1)(A) (2012). A certificate
of appealability will not issue absent “a substantial showing of
the denial of a constitutional right.”
(2012).

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 assessment of the
constitutional claims is debatable or wrong.

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 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
Smith 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 presented

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

DISMISSED

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