Mark Kersey v. Keith Davi


UNPUBLISHED PER CURIAM OPINION filed. Motion disposition in opinion--denying Motion certificate of appealability (Local Rule 22(a)) [999842091-2]; denying Motion for transcript at government expense [999873697-2]; denying Motion to proceed in forma pauperis (FRAP 24) [999873680-2] Originating case number: 1:15-cv-00133-TSE-MSN Copies to all parties and the district court/agency. [999987585]. Mailed to: Mark Kersey SUSSEX I STATE PRISON 24414 Musselwhite Drive Waverly, VA 23891-1111. [16-6751]

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Appeal: 16-6751 Doc: 14 Filed: 12/15/2016 Pg: 1 of 3 UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 16-6751 MARK KERSEY, Petitioner - Appellant, v. KEITH DAVIS, Respondent - Appellee. 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-00133-TSE-MSN) Submitted: December 6, 2016 Decided: December 15, 2016 Before AGEE and KEENAN, Circuit Judges, and HAMILTON, Senior Circuit Judge. Dismissed by unpublished per curiam opinion. Mark Kersey, Appellant Pro Se. Rosemary Virginia Bourne, OFFICE OF THE ATTORNEY GENERAL OF VIRGINIA, Richmond, Virginia, for Appellee. Unpublished opinions are not binding precedent in this circuit. Appeal: 16-6751 Doc: 14 Filed: 12/15/2016 Pg: 2 of 3 PER CURIAM: Mark Kersey seeks to appeal the district court’s order denying relief on 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.” (2012). 28 U.S.C. § 2253(c)(2) 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 Kersey has not made the requisite showing. Accordingly, we deny Kersey’s motions for a certificate of appealability, for a copy of the transcript at government expense, and leave to proceed in forma pauperis, and dismiss the appeal. We dispense with oral argument because the facts and legal contentions are adequately presented 2 Appeal: 16-6751 Doc: 14 Filed: 12/15/2016 Pg: 3 of 3 in the materials before this court and argument would not aid the decisional process. DISMISSED 3

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