Billy Larkin v. Johnny Hawkin
UNPUBLISHED PER CURIAM OPINION filed. Motion disposition in opinion--denying Motion to proceed in forma pauperis (FRAP 24) [1000097703-2]; denying Motion certificate of appealability (Local Rule 22(a)) [1000084004-2] Originating case number: 5:16-hc-02031-D Copies to all parties and the district court/agency. . Mailed to: Billy Larkin. [17-6631]
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UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
BILLY F. LARKIN,
Petitioner - Appellant,
JOHNNY HAWKINS, Superintendent; ROY COOPER, Attorney General of the
State of North Carolina,
Respondents - Appellees.
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-02031-D)
Submitted: September 26, 2017
Decided: October 3, 2017
Before WILKINSON, FLOYD, and THACKER, Circuit Judges.
Dismissed by unpublished per curiam opinion.
Billy F. Larkin, Appellant Pro Se. Clarence Joe DelForge, III, NORTH CAROLINA
DEPARTMENT OF JUSTICE, Raleigh, North Carolina, for Appellees.
Unpublished opinions are not binding precedent in this circuit.
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Billy F. Larkin 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).
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 Larkin has not
made the requisite showing. Accordingly, we deny Larkin’s motion for 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
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