Torian Gaither v. David Zook

Filing

UNPUBLISHED PER CURIAM OPINION filed. Motion disposition in opinion--denying Motion to proceed in forma pauperis (FRAP 24) [1000107069-2]. A certificate of appealability is denied. Originating case number: 3:16-cv-00064-MHL-RCY. Copies to all parties and the district court/agency [1000180130]. Mailed to: Torian Gaither, Elizabeth Kiernan Fitzgerald. [17-6690]

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Appeal: 17-6690 Doc: 9 Filed: 10/25/2017 Pg: 1 of 2 UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 17-6690 TORIAN GAITHER, Petitioner - Appellant, v. DAVID ZOOK, Warden, Respondent - Appellee. Appeal from the United States District Court for the Eastern District of Virginia, at Richmond. M. Hannah Lauck, District Judge. (3:16-cv-00064-MHL-RCY) Submitted: September 14, 2017 Decided: October 25, 2017 Before MOTZ, THACKER, and HARRIS, Circuit Judges. Dismissed by unpublished per curiam opinion. Torian Gaither, Appellant Pro Se. Elizabeth Kiernan Fitzgerald, OFFICE OF THE ATTORNEY GENERAL OF VIRGINIA, Richmond, Virginia, for Appellee. Unpublished opinions are not binding precedent in this circuit. Appeal: 17-6690 Doc: 9 Filed: 10/25/2017 Pg: 2 of 2 PER CURIAM: Torian Gaither seeks to appeal the district court’s second order accepting the amended recommendation of the magistrate judge and denying relief on Gaither’s 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 Gaither 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. DISMISSED 2

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