Carlos Silva v. Frank Perry

Filing

UNPUBLISHED PER CURIAM OPINION filed. Motion disposition in opinion--denying Motion to proceed in forma pauperis (FRAP 24) [999618705-2]; denying Motion for a certificate of appealability (Local Rule 22(a)) [999587721-2]. Originating case number: 1:15-cv-00167-CCE-JLW. Copies to all parties and the district court. [999696253]. Mailed to: Carlos Silva. [15-6775]

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UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT

No. 15-6775

CARLOS ALENJANDRO SILVA,
Petitioner – Appellant,
v.
FRANK L. PERRY,
Respondent - Appellee.

Appeal from the United States District Court for the Middle
District of North Carolina, at Greensboro. Catherine C. Eagles,
District Judge. (1:15-cv-00167-CCE-JLW)

Submitted:

October 14, 2015

Decided:

November 10, 2015

Before GREGORY and FLOYD, Circuit Judges, and HAMILTON, Senior
Circuit Judge.

Dismissed by unpublished per curiam opinion.

Carlos Alenjandro Silva, Appellant Pro Se. 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Unpublished opinions are not binding precedent in this circuit.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:
Carlos
court’s

Alenjandro

order

Silva

accepting

the

seeks

to

appeal

recommendation

of

the
the

district
magistrate

judge and dismissing as untimely 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

appealability.

28

U.S.C.

A certificate of appealability will not

substantial

constitutional right.”

of

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
Silva has not made the requisite showing.

Accordingly, we deny

Silva’s motion for 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
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adequately

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presented

in

the

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materials

before

this

court

and

argument would not aid the decisional process.

DISMISSED

3