David Kenneth Fowler v. Frank L. Perry
UNPUBLISHED PER CURIAM OPINION filed. Originating case number: 1:16-cv-00302-FDW Copies to all parties and the district court/agency. . Mailed to: David Fowler. [17-6694]
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UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
DAVID KENNETH FOWLER,
Petitioner - Appellant,
FRANK L. PERRY, substituted for State of North Carolina,
Respondent - Appellee,
STATE OF NORTH CAROLINA,
Appeal from the United States District Court for the Western District of North Carolina,
at Asheville. Frank D. Whitney, Chief District Judge. (1:16-cv-00302-FDW)
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Dismissed by unpublished per curiam opinion.
David Kenneth Fowler, Appellant Pro Se. Clarence Joe DelForge, III, NORTH
CAROLINA DEPARTMENT OF JUSTICE, Raleigh, North Carolina, for Appellee.
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Unpublished opinions are not binding precedent in this circuit.
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David Kenneth Fowler 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 MillerEl 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 Fowler has not
made the requisite showing. Accordingly, we deny a certificate of appealability 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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