John Kuplen v. Frank Perry

Filing

UNPUBLISHED PER CURIAM OPINION filed denying certificate of appealability. Originating case number: 1:14-cv-00598-WO-LPA. Copies to all parties and the district court. [999760968]. Mailed to: John Kuplen. [15-7218]

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UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT

No. 15-7218

JOHN EDWARD KUPLEN,
Petitioner – Appellant,
v.
FRANK PERRY,
Respondent - Appellee.

Appeal from the United States District Court for the Middle
District of North Carolina, at Greensboro.
William L. Osteen,
Jr., Chief District Judge. (1:14-cv-00598-WO-LPA)

Submitted:

January 29, 2016

Decided:

February 24, 2016

Before GREGORY, KEENAN, and HARRIS, Circuit Judges.

Dismissed by unpublished per curiam opinion.

John Edward Kuplen, Appellant Pro Se.
Clarence Joe DelForge,
III, Nicholaos George Vlahos, 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Unpublished opinions are not binding precedent in this circuit.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:
John Edward Kuplen seeks to appeal the district court’s
order accepting the recommendation of the 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

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
Kuplen has not made the requisite showing.
a

certificate

dispense

with

of

appealability

oral

argument

and

dismiss

because

2

Accordingly, we deny

the

the

appeal.

facts

and

We
legal

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contentions

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are

adequately

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presented

in

the

materials

before

this court and argument would not aid the decisional process.

DISMISSED

3