Alvin Marshall v. Supreme Court of Virginia

Filing

UNPUBLISHED PER CURIAM OPINION filed. Motion disposition in opinion--denying Motion to proceed in forma pauperis (FRAP 24) [999781916-2], updating certificate of appealability status Originating case number: 1:15-cv-00312-TSE-JFA Copies to all parties and the district court/agency. [999902361]. Mailed to: Alvin Marshall. [16-6376]

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UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT

No. 16-6376

ALVIN MARSHALL,
Petitioner – Appellant,
v.
SUPREME COURT OF VIRGINIA; UNITED STATES DISTRICT COURT FOR
EASTERN DISTRICT OF VIRGINIA; COMMONWEALTH OF VIRGINIA,
Prosecutor; WARDEN EARL BARKSDALE,
Respondents - Appellees.

Appeal from the United States District Court for the Eastern
District of Virginia, at Alexandria.
T.S. Ellis, III, Senior
District Judge. (1:15-cv-00312-TSE-JFA)

Submitted:

July 28, 2016

Before MOTZ and
Circuit Judge.

HARRIS,

Decided:

Circuit

Judges,

and

August 2, 2016

DAVIS,

Senior

Dismissed by unpublished per curiam opinion.

Alvin Marshall, Appellant Pro Se.

Unpublished opinions are not binding precedent in this circuit.

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PER CURIAM:
Alvin Marshall seeks to appeal the district court’s order
denying his Fed. R. Civ. P. 60(b) motion for reconsideration of
the

district

court’s

order

§ 2254 (2012) petition.

denying

relief

on

his

28

U.S.C.

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); Reid v. Angelone, 369 F.3d
363, 369 (4th Cir. 2004).
not

issue

absent

“a

constitutional right.”

A certificate of appealability will

substantial

showing

of

the

denial

28 U.S.C. § 2253(c)(2) (2012).

of

a

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
Marshall has not made the requisite showing.

Accordingly, we

deny a certificate of appealability, deny leave to proceed in
forma pauperis, and dismiss the appeal.
2

We dispense with oral

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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