Franklin Smith v. Harold Clarke

Filing

UNPUBLISHED PER CURIAM OPINION filed. Motion disposition in opinion--denying Motion to appoint/assign counsel [999716865-2]; denying Motion certificate of appealability (Local Rule 22(a)) [999662511-2] Originating case number: 2:13-cv-00479-RAJ-LRL Copies to all parties and the district court/agency. [999729626]. Mailed to: Franklin Smith. [15-7432]

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UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT

No. 15-7432

FRANKLIN CHARLES SMITH,
Petitioner - Appellant,
v.
HAROLD W. CLARKE,
Corrections,

Director

of

Virginia

Department

of

Respondent – Appellee,
and
KENNETH STOLLE, Virginia Beach Sheriff,
Respondent.

Appeal from the United States District Court for the Eastern
District of Virginia, at Norfolk. Raymond A. Jackson, District
Judge. (2:13-cv-00479-RAJ-LRL)

Submitted:

December 21, 2015

Decided:

January 5, 2016

Before MOTZ and AGEE, Circuit Judges, and DAVIS, Senior Circuit
Judge.

Dismissed by unpublished per curiam opinion.

Franklin Charles Smith, Appellant Pro Se. Steven Andrew Witmer,
Senior Assistant Attorney General, Richmond, Virginia, for
Appellee.

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Unpublished opinions are not binding precedent in this circuit.

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PER CURIAM:
Franklin Charles 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

(2012).

of

appealability.

28

U.S.C.

§ 2253(c)(1)(A)

A certificate of appealability will not issue absent “a

substantial showing of the denial of a constitutional right.”
28 U.S.C. § 2253(c)(2) (2012).
relief

on

the

demonstrating
district

merits,
that

court’s

debatable

or

a

When the district court denies

prisoner

reasonable

assessment

wrong.

Slack

satisfies

jurists

this

would

of

the

v.

McDaniel,

standard

find

that

U.S.

the

claims

constitutional
529

by

is

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

Smith’s motion for a certificate of appealability and dismiss
the

appeal.

denied.

Smith’s

motion

for

appointment

of

counsel

is

We dispense with oral argument because the facts and
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legal
before

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contentions
this

court

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are

adequately

and

argument

presented

would

not

in
aid

the
the

materials
decisional

process.

DISMISSED

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