Joseph Midyette v. US


UNPUBLISHED PER CURIAM OPINION filed.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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Appeal: 15-7927 Doc: 11 Filed: 03/02/2016 Pg: 1 of 3 UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 15-7927 JOSEPH DIXON MIDYETTE, Petitioner – Appellant, v. UNITED STATES OF AMERICA; TERRENCE ATTORNEY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 HARRIS, Circuit Decided: Judges, and March 2, 2016 DAVIS, Senior Dismissed by unpublished per curiam opinion.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 Unpublished opinions are not binding precedent in this circuit. Appeal: 15-7927 Doc: 11 Filed: 03/02/2016 Pg: 2 of 3 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 2 Appeal: 15-7927 Doc: 11 Filed: 03/02/2016 Pg: 3 of 3 presented in the materials before this court and argument would not aid the decisional process. DISMISSED 3

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