Joe Fulgham v. Jack Barber

Filing

UNPUBLISHED PER CURIAM OPINION filed. Motion denied in opinion--denying Motion for other relief for release [1000024215-2], denying Motion for oral presentation [1000024214-2] Originating case number: 2:16-cv-00001-AWA-DEM Copies to all parties and the district court/agency. [1000027866]. Mailed to: Joe Fulgham. [16-7687]

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UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT

No. 16-7687

JOE LEE FULGHAM,
Petitioner – Appellant,
v.
JACK BARBER, M.D., Interim Commissioner of the Virginia
Department of Behavioral Health and Development Services,
Respondent - Appellee.

Appeal from the United States District Court for the Eastern
District of Virginia, at Norfolk.
Arenda L. Wright Allen,
District Judge. (2:16-cv-00001-AWA-DEM)

Submitted:

February 16, 2017

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

Decided:

DUNCAN,

February 22, 2017

Circuit

Judge,

and

Dismissed by unpublished per curiam opinion.

Joe Lee Fulgham, Appellant Pro Se. Susan Mozley Harris,
Assistant Attorney General, Richmond, Virginia, for Appellee.

Unpublished opinions are not binding precedent in this circuit.

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PER CURIAM:
Joe Lee Fulgham 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.
not

appealable

unless

a

circuit

certificate of appealability.
A

certificate

of

justice

or

The order is

judge

issues

a

28 U.S.C. § 2253(c)(1)(A) (2012).

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
Fulgham has not made the requisite showing.

Accordingly, we

deny a certificate of appealability and dismiss the appeal.

We

deny Fulgham’s motions for release and for oral presentation.
We

dispense

with

oral

argument
2

because

the

facts

and

legal

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contentions

are

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adequately

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presented

in

the

materials

before

this court and argument would not aid the decisional process.

DISMISSED

3