Charles Edward Gary v. Harold W. Clarke
UNPUBLISHED PER CURIAM OPINION filed. Motion disposition in opinion--denying Motion to proceed in forma pauperis (FRAP 24) [1000134509-2] Originating case number: 2:16-cv-00283-RAJ-RJK Copies to all parties and the district court/agency. . Mailed to: Gary. [17-6882]
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UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
CHARLES EDWARD GARY,
Petitioner - Appellant,
HAROLD W. CLARKE, Director Department of Corrections of Virginia,
Respondent - Appellee.
Appeal from the United States District Court for the Eastern District of Virginia, at
Norfolk. Raymond A. Jackson, District Judge. (2:16-cv-00283-RAJ-RJK)
Submitted: September 28, 2017
Decided: October 3, 2017
Before WILKINSON, MOTZ, and KING, Circuit Judges.
Dismissed by unpublished per curiam opinion.
Charles Edward Gary, Appellant Pro Se. Lauren Catherine Campbell, OFFICE OF THE
ATTORNEY GENERAL OF VIRGINIA, Richmond, Virginia, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
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Charles Edward Gary seeks to appeal the district court’s order accepting the
recommendation of the magistrate judge and 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).
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
We have independently reviewed the record and conclude that Gary 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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