Andre Spates v. Johnny Hawkin
Filing
UNPUBLISHED PER CURIAM OPINION filed. Certificate of appealability denied, Motion to proceed in forma pauperis denied (FRAP 24) [999975990-2] Originating case number: 5:16-hc-02008-D Copies to all parties and the district court/agency. [1000016918]. Mailed to: Andre Michael Spates. [16-7548]
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UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 16-7548
ANDRE MICHAEL SPATES,
Petitioner - Appellant,
v.
JOHNNY HAWKINS,
Respondent - Appellee.
Appeal from the United States District Court for the Eastern
District of North Carolina, at Raleigh.
James C. Dever, III,
Chief District Judge. (5:16-hc-02008-D)
Submitted:
January 31, 2017
Decided:
February 3, 2017
Before WILKINSON, KEENAN, and THACKER, Circuit Judges.
Dismissed by unpublished per curiam opinion.
Andre Michael Spates, Appellant Pro Se.
Unpublished opinions are not binding precedent in this circuit.
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PER CURIAM:
Andre Michael Spates seeks to appeal the district court’s
order dismissing as time-barred and, alternatively, dismissing
as without merit 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
Spates 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
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presented in the materials before this court and argument would
not aid the decisional process.
DISMISSED
3
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