Maurice Shepherd v. Harvey Clay
UNPUBLISHED PER CURIAM OPINION filed. Motion disposition in opinion--denying Motion to proceed in forma pauperis (FRAP 24) [1000073037-2]. Originating case number: 5:16-hc-02221-D. Copies to all parties and the district court/agency. . Mailed to: Maurice Shepherd. [17-6456]
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UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
Petitioner - Appellant,
HARVEY CLAY, Superintendent,
Respondent - Appellee.
Appeal from the United States District Court for the Eastern District of North Carolina, at
Raleigh. James C. Dever, III, Chief District Judge. (5:16-hc-02221-D)
Submitted: July 27, 2017
Decided: August 1, 2017
Before AGEE and FLOYD, Circuit Judges, and HAMILTON, Senior Circuit Judge.
Dismissed by unpublished per curiam opinion.
Maurice Shepherd, Appellant Pro Se.
Unpublished opinions are not binding precedent in this circuit.
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Maurice Shepherd seeks to appeal the district court’s order dismissing as untimely
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 Shepherd 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 in the
materials before this court and argument would not aid the decisional process.
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