Xavier Shaw v. Carlton Joyner

Filing

UNPUBLISHED PER CURIAM OPINION filed denying Motion to proceed in forma pauperis (FRAP 24) [999965054-2], denying certificate of appealability. Originating case number: 5:15-hc-02174-D. Copies to all parties and the district court. [1000026799]. Mailed to: Xavier Shaw. [16-7373]

Appeal: 16-7373

Doc: 10

Filed: 02/21/2017

Pg: 1 of 3

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT

No. 16-7373

XAVIER HOSEA SHAW,
Petitioner - Appellant,
v.
CARLTON JOYNER; STATE OF NORTH CAROLINA,
Respondents - Appellees.

Appeal from the United States District Court for the Eastern
District of North Carolina, at Raleigh.
James C. Dever, III,
Chief District Judge. (5:15-hc-02174-D)

Submitted:

February 16, 2017

Before GREGORY, Chief Judge,
HAMILTON, Senior Circuit Judge.

Decided:

DUNCAN,

February 21, 2017

Circuit

Judge,

and

Dismissed by unpublished per curiam opinion.

Xavier Hosea Shaw, Appellant Pro Se.

Unpublished opinions are not binding precedent in this circuit.

Appeal: 16-7373

Doc: 10

Filed: 02/21/2017

Pg: 2 of 3

PER CURIAM:
Xavier

Hosea

Shaw

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

When the district court denies

prisoner

reasonable

assessment

wrong.

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
Shaw 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
2

Appeal: 16-7373

Doc: 10

Filed: 02/21/2017

Pg: 3 of 3

presented in the materials before this court and argument would
not aid the decisional process.
DISMISSED

3