Howard Garnett v. Harold Clarke

Filing

UNPUBLISHED PER CURIAM OPINION filed. Certificate of appealability denied; Motion to proceed in forma pauperis (FRAP 24) denied [999839082-2] Originating case number: 7:14-cv-00452-GEC-RSB. Copies to all parties and the district court.. [999959014]. Mailed to: Howard Z. Garnett. [16-6486]

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UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT

No. 16-6486

HOWARD Z. GARNETT,
Petitioner - Appellant,
v.
HAROLD W. CLARKE, Director, Department of Corrections,
Respondent - Appellee.

Appeal from the United States District Court for the Western
District of Virginia, at Roanoke.
Glen E. Conrad, Chief
District Judge. (7:14-cv-00452-GEC-RSB)

Submitted:

October 4, 2016

Decided:

November 1, 2016

Before GREGORY, Chief Judge, DUNCAN, Circuit Judge, and DAVIS,
Senior Circuit Judge.

Dismissed by unpublished per curiam opinion.

Howard Z. Garnett, Appellant Pro Se.
Alice Theresa Armstrong,
OFFICE OF THE ATTORNEY GENERAL OF VIRGINIA, Richmond, Virginia,
for Appellee.

Unpublished opinions are not binding precedent in this circuit.

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PER CURIAM:
Howard

Z.

Garnett

seeks

to

appeal

the

district

court’s

order denying his Fed. R. Civ. P. 60(b)(3) motion for relief
from

the

district

court’s

prior

order

denying

relief

on

Garnett’s 28 U.S.C. § 2254 (2012) petition.

The order is not

appealable

judge

unless

a

circuit

certificate of appealability.

justice

or

issues

a

28 U.S.C. § 2253(c)(1)(A) (2012);

Reid v. Angelone, 369 F.3d 363, 369 (4th Cir. 2004), abrogated
in part by United States v. McRae, 793 F.3d 392, 399–400 & n.7
(4th Cir. 2015).

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

debatable

or

assessment

wrong.

Slack

of

the

constitutional

v.

McDaniel,

529

U.S.

claims
473,

is
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.
at 484-85.

2

Slack, 529 U.S.

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We have independently reviewed the record and conclude that
Garnett 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

*

Because Garnett does not challenge the basis for the
district court’s disposition on his Rule 60(b) motion in his
informal brief, Garnett has forfeited appellate review of the
court’s order. See 4th Cir. R. 34(b).

3