Adam Pelletier v. Harold Clarke


UNPUBLISHED PER CURIAM OPINION filed. Motion disposition in opinion--denying Motion to proceed in forma pauperis (FRAP 24) [1000119499-2] Originating case number: 7:16-cv-00322-MFU-RSB Copies to all parties and the district court/agency. [1000180913]. Mailed to: Adam Pelletier. [17-6742]

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Appeal: 17-6742 Doc: 9 Filed: 10/26/2017 Pg: 1 of 2 UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 17-6742 ADAM PELLETIER, Petitioner - Appellant, v. HAROLD CLARKE, Respondent - Appellee. Appeal from the United States District Court for the Western District of Virginia, at Roanoke. Michael F. Urbanski, Chief District Judge. (7:16-cv-00322-MFU-RSB) Submitted: October 23, 2017 Decided: October 26, 2017 Before KING, WYNN, and THACKER, Circuit Judges. Dismissed by unpublished per curiam opinion. Adam Pelletier, Appellant Pro Se. Michael Thomas Judge, OFFICE OF THE ATTORNEY GENERAL OF VIRGINIA, Richmond, Virginia, for Appellee. Unpublished opinions are not binding precedent in this circuit. Appeal: 17-6742 Doc: 9 Filed: 10/26/2017 Pg: 2 of 2 PER CURIAM: Adam Pelletier seeks to appeal from the district court’s order dismissing as timebarred and partially procedurally defaulted his second 28 U.S.C. § 2254 (2012) petition. The district court’s 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 motion 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 Pelletier has not made the requisite showing. In the absence of prefiling authorization from this court, the district court lacked jurisdiction to hear this successive § 2254 petition. See 28 U.S.C. § 2244(b)(3) (2012). 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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