Joshua Paternoster-Cozart v. Bob McCabe

Filing

UNPUBLISHED PER CURIAM OPINION filed. Motion disposition in opinion--granting Motion to substitute party (FRAP 43) [1000047843-2]; denying Motion to proceed in forma pauperis (FRAP 24) [1000034631-2]; denying Motion certificate of appealability (Local Rule 22(a)) [1000026770-2]; denying Motion to appoint/assign counsel [1000026767-2] Originating case number: 2:16-cv-00633-MSD-LRL. Copies to all parties and the district court/agency. [1000143847]. Mailed to: J. Paternoster-Cozart. [17-6189]

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UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT

No. 17-6189

JOSHUA PATERNOSTER-COZART,
Petitioner - Appellant,
v.
RONALDO MYERS, Superintendent of Hampton Roads Regional Jail,
Respondent - Appellee,
and
HAMPTON CITY CIRCUIT COURT; LINDA BACHELOR SMITH, Clerk;
HAMPTON SHERIFF’S OFFICE; B. J. ROBERTS, Sheriff,
Defendants.

Appeal from the United States District Court for the Eastern District of Virginia, at
Norfolk. Mark S. Davis, District Judge. (2:16-cv-00633-MSD-LRL)

Submitted: July 31, 2017

Decided: August 25, 2017

Before WILKINSON, NIEMEYER, and SHEDD, Circuit Judges.

Dismissed by unpublished per curiam opinion.

Joshua Paternoster-Cozart, Appellant Pro Se.

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Unpublished opinions are not binding precedent in this circuit.

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PER CURIAM:
Joshua Paternoster-Cozart seeks to appeal the district court’s order denying relief
on his 28 U.S.C. § 2254 (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). 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 the issue
Paternoster-Cozart sought to raise was litigated in a previous § 2254 petition, and he
accordingly has not made the requisite showing. Thus, we grant the motion for party
substitution and replace Bob McCabe with Ronaldo Myers, deny the motion to appoint
counsel and expedite decision, deny the motion for a certificate of appealability, deny the
motion for leave to proceed in forma pauperis, and dismiss the appeal. We dispense with
oral

argument

because

the

facts

and

3

legal

contentions

are

adequately

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presented in the materials before this court and argument would not aid the decisional
process.
DISMISSED

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