Michael Gorbey v. Warden Zych, USP Lee


UNPUBLISHED PER CURIAM OPINION filed. Motion disposition in opinion--denying Motion to amend/correct [999994581-2]; denying Motion for other relief [999994581-3]; denying Motion to proceed in forma pauperis (FRAP 24) [999985738-2], denying certificate of appealability. Originating case number: 7:16-cv-00372-NKM-RSB. Copies to all parties and the district court/agency. [1000078997]. [16-7649]

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Appeal: 16-7649 Doc: 9 Filed: 05/10/2017 Pg: 1 of 2 UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 16-7649 MICHAEL S. GORBEY, a/k/a Michael S. Owlfeather-Gorbey, Petitioner - Appellant, v. CHRISTOPHER ZYCH, Warden, USP Lee, Respondent - Appellee. Appeal from the United States District Court for the Western District of Virginia, at Roanoke. Norman K. Moon, Senior District Judge. (7:16-cv-00372-NKM-RSB) Submitted: March 31, 2017 Before MOTZ, FLOYD, and HARRIS, Circuit Judges. Dismissed by unpublished per curiam opinion. Michael S. Gorbey, Appellant Pro Se. Unpublished opinions are not binding precedent in this circuit. Decided: May 10, 2017 Appeal: 16-7649 Doc: 9 Filed: 05/10/2017 Pg: 2 of 2 PER CURIAM: Michael S. Gorbey, a District of Columbia Code offender incarcerated at USP Lee, seeks to appeal the district court’s order dismissing without prejudice his 28 U.S.C. § 2241 (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); see Madley v. U.S. Parole Comm’n, 278 F.3d 1306, 1308-10 (D.C. Cir. 2002). 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). 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 Gorbey has not made the requisite showing. Accordingly, we deny Gorbey’s motion to amend his appeal to include a claim not presented below, 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 presented in the materials before this court and argument would not aid the decisional process. DISMISSED 2

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