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UNPUBLISHED PER CURIAM OPINION filed.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. . [16-7649]
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UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
MICHAEL S. GORBEY, a/k/a Michael S. Owlfeather-Gorbey,
Petitioner - Appellant,
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Dismissed by unpublished per curiam opinion.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Unpublished opinions are not binding precedent in this circuit.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
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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.
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