Leroy Phillips v. Cynthia Thornton
UNPUBLISHED PER CURIAM OPINION filed. Motion disposition in opinion--denying Motion to proceed in forma pauperis (FRAP 24) [999993090-2]; denying Motion certificate of appealability (Local Rule 22(a)) [999978533-2] Originating case number: 1:16-cv-00049-FDW Copies to all parties and the district court/agency. . Mailed to: Leroy Phillips. [16-7656]
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UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
Petitioner – Appellant,
CYNTHIA THORNTON, Supt. III,
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-00049-FDW)
February 16, 2017
February 22, 2017
Before GREGORY, Chief Judge, DUNCAN, Circuit Judge, and HAMILTON,
Senior Circuit Judge.
Dismissed by unpublished per curiam opinion.
Leroy Phillips, Appellant Pro Se.
Unpublished opinions are not binding precedent in this circuit.
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Leroy Phillips seeks to appeal the district court’s order
denying relief on his 28 U.S.C. § 2254 (2012) petition.
is not appealable unless a circuit justice or judge issues a
certificate of appealability.
28 U.S.C. § 2253(c)(1)(A) (2012).
A certificate of appealability will not issue absent “a substantial
showing of the denial of a constitutional right.”
§ 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.
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
Phillips 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 presented
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in the materials before this court and argument would not aid the
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