Robert Herring v. Harold Clarke

Filing

UNPUBLISHED PER CURIAM OPINION filed. Originating case number: 3:13-cv-00326-JRS Copies to all parties and the district court/agency. [1000044914]. Mailed to: Robert Herring. [16-6685]

Appeal: 16-6685

Doc: 10

Filed: 03/20/2017

Pg: 1 of 2

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT

No. 16-6685

ROBERT MICHAEL HERRING,
Petitioner - Appellant,
v.
HAROLD CLARKE,
Respondent - Appellee.

Appeal from the United States District Court for the Eastern
District of Virginia, at Richmond.
James R. Spencer, Senior
District Judge. (3:13-cv-00326-JRS)

Submitted:

March 3, 2017

Decided:

March 20, 2017

Before WILKINSON, NIEMEYER, and WYNN, Circuit Judges.

Dismissed by unpublished per curiam opinion.

Robert Michael Herring, Appellant Pro Se.
Eugene Paul Murphy,
OFFICE OF THE ATTORNEY GENERAL OF VIRGINIA, Richmond, Virginia,
for Appellee.

Unpublished opinions are not binding precedent in this circuit.

Appeal: 16-6685

Doc: 10

Filed: 03/20/2017

Pg: 2 of 2

PER CURIAM:
Robert Michael Herring seeks to appeal the district court’s
order denying relief on his 28 U.S.C. § 2254 petition.

The order

is not appealable unless a circuit justice or judge issues a
certificate
(2012).

of

appealability.

See

28

U.S.C.

§ 2253(c)(1)(A)

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

petition

states

constitutional right.

a

debatable

claim

of

the

denial

of

a

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

We have independently reviewed the record and conclude that
Herring has not made the requisite showing.

Accordingly, we deny

a certificate of appealability 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
2