Roger Herring v. Frank Perry

Filing

UNPUBLISHED PER CURIAM OPINION filed. Motion disposition in opinion--denying Motion certificate of appealability (Local Rule 22(a)) [999657625-2]; denying Motion to proceed in forma pauperis (FRAP 24) [999690404-2], denying Motion to proceed in forma pauperis (FRAP 24) [999699551-2]. Originating case number: 1:13-cv-01098-TDS-JEP. Copies to all parties and the district court. [999771473]. Mailed to: Appellant. [15-7425]

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UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT

No. 15-7425

ROGER D. HERRING,
Petitioner - Appellant,
v.
FRANK L. PERRY, Secretary, North Carolina Department of Public
Safety,
Respondent - Appellee.

Appeal from the United States District Court for the Middle
District of North Carolina, at Greensboro. Thomas D. Schroeder,
District Judge. (1:13-cv-01098-TDS-JEP)

Submitted:

February 24, 2016

Decided:

March 10, 2016

Before WILKINSON, AGEE, and HARRIS, Circuit Judges.

Dismissed by unpublished per curiam opinion.

Roger D. Herring, Appellant Pro Se. Clarence Jorge 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Unpublished opinions are not binding precedent in this circuit.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:
Roger D. Herring 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 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.”
§ 2253(c)(2) (2012).

28 U.S.C.

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
Herring 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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