Joseph Midyette v. US

Filing

UNPUBLISHED PER CURIAM OPINION filed. Motion disposition in opinion--denying Motion to proceed in forma pauperis (FRAP 24) [999718763-2]. Originating case number: 5:15-hc-02108-D. Copies to all parties and the district court/agency. [999766383]. Mailed to: Joseph Midyette. [15-7927]

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UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT

No. 15-7927

JOSEPH DIXON MIDYETTE,
Petitioner – Appellant,
v.
UNITED STATES OF AMERICA; TERRENCE
ATTORNEY GENERAL OF THE UNITED STATES,

W.

BOYLE,

Judge;

Respondents - Appellees.

Appeal from the United States District Court for the Eastern
District of North Carolina, at Raleigh.
James C. Dever, III,
Chief District Judge. (5:15-hc-02108)

Submitted:

February 25, 2016

Before SHEDD and
Circuit Judge.

HARRIS,

Circuit

Decided:

Judges,

and

March 2, 2016

DAVIS,

Senior

Dismissed by unpublished per curiam opinion.

Joseph Dixon Midyette, Appellant Pro Se.

Unpublished opinions are not binding precedent in this circuit.

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PER CURIAM:
Joseph Dixon Midyette seeks to appeal the district court’s
orders

dismissing

his

28

U.S.C.

§ 2254

(2012)

petition

as

successive and denying his Fed. R. Civ. P. 59(e) motion for
reconsideration.

The order is not appealable unless a circuit

justice or judge issues a certificate of appealability.
U.S.C. § 2253(c)(1)(A) (2012).

See 28

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).

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
Midyette 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
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presented in the materials before this court and argument would
not aid the decisional process.

DISMISSED

3