John Pate v. Roy Cooper


UNPUBLISHED PER CURIAM OPINION filed. Motion disposition in opinion--denying Motion to proceed in forma pauperis (FRAP 24) [999944567-2]; denying Motion to appoint/assign counsel [999944569-2]; denying Motion certificate of appealability (Local Rule 22(a)) [999944571-2]. Originating case number: 1:16-cv-00086-FDW. Copies to all parties and the district court/agency [999990659]. Mailed to: John E. Pate. [16-7341]

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Appeal: 16-7341 Doc: 12 Filed: 12/20/2016 Pg: 1 of 3 UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 16-7341 JOHN E. PATE, Petitioner – Appellant, v. ROY COOPER, Respondent - Appellee. Appeal from the United States District Court for the Western District of North Carolina, at Asheville. Frank D. Whitney, Chief District Judge. (1:16-cv-00086-FDW) Submitted: December 15, 2016 Decided: December 20, 2016 Before SHEDD, DUNCAN, and AGEE, Circuit Judges. Dismissed by unpublished per curiam opinion. John E. Pate, Appellant Pro Se. Unpublished opinions are not binding precedent in this circuit. Appeal: 16-7341 Doc: 12 Filed: 12/20/2016 Pg: 2 of 3 PER CURIAM: John E. Pate seeks to appeal the district court’s order dismissing his 28 U.S.C. § 2254 (2012) petition. not appealable certificate (2012). of unless a circuit appealability. justice See 28 or The order is judge U.S.C. issues a § 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 Slack satisfies jurists this would of the v. McDaniel, 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 Pate has not made the requisite showing. Accordingly, we deny leave to proceed in forma pauperis, deny Pate’s motions for a certificate of appealability and to appoint counsel, and dismiss the appeal. We dispense with oral argument because the facts and legal contentions are adequately presented in the materials 2 Appeal: 16-7341 before Doc: 12 this court Filed: 12/20/2016 and Pg: 3 of 3 argument would not aid the decisional process. DISMISSED 3

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