Darryl Brown v. Linda Thoma

Filing

UNPUBLISHED PER CURIAM OPINION filed denying certificate of appealability; denying Motion to proceed in forma pauperis (FRAP 24) [999756886-2]. Originating case number: 0:15-cv-03079-HMH. Copies to all parties and the district court. [999921570]. Mailed to: Darryl Brown. [16-6137]

Appeal: 16-6137

Doc: 8

Filed: 09/01/2016

Pg: 1 of 3

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT

No. 16-6137

DARRYL T. BROWN,
Petitioner - Appellant,
v.
LINDA THOMAS, Warden,
Respondent - Appellee.

Appeal from the United States District Court for the District of
South Carolina, at Rock Hill.
Henry M. Herlong, Jr., Senior
District Judge. (0:15-cv-03079-HMH)

Submitted:

August 19, 2016

Decided:

September 1, 2016

Before TRAXLER and DUNCAN, Circuit Judges, and DAVIS, Senior
Circuit Judge.

Dismissed by unpublished per curiam opinion.

Darryl T. Brown, Appellant Pro Se.

Unpublished opinions are not binding precedent in this circuit.

Appeal: 16-6137

Doc: 8

Filed: 09/01/2016

Pg: 2 of 3

PER CURIAM:
Darryl T. Brown seeks to appeal from the district court’s
order

accepting

the

recommendation

of

the

magistrate

judge,

construing his 28 U.S.C. § 2241 (2012) petition as a 28 U.S.C.
§ 2255 (2012) motion and transferring it to the Eastern District
of Tennessee.

Because the claims Brown raised in his motion do

not fit within the savings clause of § 2255, we hold that the
district court properly found that Brown’s motion could only be
considered under § 2255.
Cir. 2000).

See In re Jones, 226 F.3d 328, 333 (4th

Thus, the transfer order is not appealable unless a

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

28

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

motion

states

constitutional right.

a

debatable

claim

of

the

Slack, 529 U.S. at 484-85.
2

denial

of

a

Appeal: 16-6137

Doc: 8

Filed: 09/01/2016

Pg: 3 of 3

We have independently reviewed the record and conclude that
Brown 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
in the materials before this court and argument would not aid the
decisional process.
DISMISSED

3