Egbert Francis, Jr. v. David Mitchell

Filing

UNPUBLISHED PER CURIAM OPINION filed. Motion disposition in opinion--denying Motion to proceed in forma pauperis (FRAP 24) [999707024-2] Originating case number: 5:15-hc-02007-BO Copies to all parties and the district court/agency. [999766321]. Mailed to: Francis. [15-7715]

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UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT

No. 15-7715

EGBERT FRANCIS, JR.,
Petitioner - Appellant,
v.
ADMINISTRATOR DAVID MITCHELL,
Respondent - Appellee.

Appeal from the United States District Court for the Eastern
District of North Carolina, at Raleigh.
Terrence W. Boyle,
District Judge. (5:15-hc-02007-BO)

Submitted:

February 25, 2016

Decided:

March 2, 2016

Before SHEDD and HARRIS, Circuit Judges, and DAVIS, Senior Circuit
Judge.

Dismissed by unpublished per curiam opinion.

Egbert Francis, Jr., Appellant Pro Se.

Unpublished opinions are not binding precedent in this circuit.

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PER CURIAM:
Egbert Francis, Jr., seeks to appeal the district court’s
order 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.
(2012).

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.”
U.S.C. § 2253(c)(2) (2012).

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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

constitutional right.

a

debatable

claim

of

the

denial

of

a

Slack, 529 U.S. at 484-85.

We have independently reviewed the record and conclude that
Francis 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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