Kevin P. Rivera v. Harold W. Clarke

Filing

UNPUBLISHED PER CURIAM OPINION filed. Motion disposition in opinion--denying Motion to proceed in forma pauperis (FRAP 24) [999755609-2], denying Motion to proceed in forma pauperis (FRAP 24) [999734300-2] Originating case number: 2:15-cv-00143-RAJ-DEM Copies to all parties and the district court/agency. [999871813]. Mailed to: Kevin P. Rivera ST. BRIDES CORRECTIONAL CENTER 701 Sanderson Road P. O. Box 16482 Chesapeake, VA 23328-6482. [16-6006]

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UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT

No. 16-6006

KEVIN P. RIVERA,
Petitioner - Appellant,
v.
HAROLD W. CLARKE, Director of the Virginia Department of
Corrections; TRACY RAY, Offender Management Services; JAMES
PARKS, Offender Management Services; KAREN BROWN, Chairman of
the VA Parole Board,
Respondents - Appellees.

Appeal from the United States District Court for the Eastern
District of Virginia, at Norfolk. Raymond A. Jackson, District
Judge. (2:15-cv-00143-RAJ-DEM)

Submitted:

June 23, 2016

Decided:

June 28, 2016

Before MOTZ, KING, and WYNN, Circuit Judges.

Dismissed by unpublished per curiam opinion.

Kevin P. Rivera, Appellant Pro Se. Laura Haeberle Cahill, OFFICE
OF THE ATTORNEY GENERAL OF VIRGINIA, Richmond, Virginia, for
Appellees.

Unpublished opinions are not binding precedent in this circuit.

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PER CURIAM:
Kevin P. Rivera 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
Rivera has not made the requisite showing with respect to the first
claim for relief in his § 2254 petition.

Furthermore, because

Rivera’s informal brief does not challenge the basis for the
district court’s disposition of the remaining claims presented in
his petition, Rivera has forfeited appellate review of that portion
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of the court’s order.

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See 4th Cir. R. 34(b).

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

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