Robert K. Stewart v. Frank Perry

Filing

UNPUBLISHED PER CURIAM OPINION filed. Motion disposition in opinion--denying Motion to proceed in forma pauperis (FRAP 24) [999945849-2]; denying Motion certificate of appealability (Local Rule 22(a)) [999934364-2] Originating case number: 1:15-cv-00435-LCB-JEP Copies to all parties and the district court/agency. [1000020510]. Mailed to: Robert K. Stewart LANESBORO CORRECTIONAL INSTITUTION P. O. Box 280 Polkton, NC 28135-0000. [16-7257]

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UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT

No. 16-7257

ROBERT K. STEWART,
Petitioner – Appellant,
v.
FRANK PERRY,
Respondent - Appellee.

Appeal from the United States District Court for the Middle
District of North Carolina, at Greensboro.
Loretta C. Biggs,
District Judge. (1:15-cv-00435-LCB-JEP)

Submitted:

January 24, 2017

Decided:

February 9, 2017

Before MOTZ and FLOYD, Circuit Judges, and DAVIS, Senior Circuit
Judge.

Dismissed by unpublished per curiam opinion.

Robert K. Stewart, Appellant Pro Se. Clarence Joe DelForge, III,
NORTH CAROLINA DEPARTMENT OF JUSTICE, Raleigh, North Carolina,
for Appellee.

Unpublished opinions are not binding precedent in this circuit.

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PER CURIAM:
Robert

K.

Stewart

seeks

to

appeal

the

district

court’s

order accepting the recommendation of the magistrate judge and
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

(2012).

of

appealability.

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.”
28 U.S.C. § 2253(c)(2) (2012).
relief

on

the

demonstrating
district

merits,
that

court’s

debatable

or

a

prisoner

reasonable

assessment

wrong.

When the district court denies
satisfies

jurists

would

of

the

v.

McDaniel,

Slack

this

standard

find

constitutional
529

U.S.

by

that

the

claims

is

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
Stewart has not made the requisite showing.

Accordingly, we

deny Stewart’s motion for a certificate of appealability, deny
leave to proceed in forma pauperis, and dismiss the appeal.
dispense

with

oral

argument

because
2

the

facts

and

We

legal

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contentions

are

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adequately

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presented

in

the

materials

before

this court and argument would not aid the decisional process.

DISMISSED

3