James Armistead v. Mr. Herring ( 2021 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 21-6016
JAMES GREGORY ARMISTEAD,
Petitioner - Appellant,
v.
MR. HERRING, Warden,
Respondent - Appellee.
Appeal from the United States District Court for the Eastern District of North Carolina, at
Raleigh. James C. Dever III, District Judge. (5:20-hc-02145-D)
Submitted: April 14, 2021 Decided: April 28, 2021
Before NIEMEYER and HARRIS, Circuit Judges, and TRAXLER, Senior Circuit Judge.
Dismissed by unpublished per curiam opinion.
James G. Armistead, Appellant Pro Se.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
James Gregory Armistead seeks to appeal the district court’s order dismissing his
28 U.S.C. § 2254 petition as an unauthorized, successive § 2254 petition. The order is not
appealable unless a circuit justice or judge issues a certificate of appealability. See 28
U.S.C. § 2253(c)(1)(A). 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). When, as here,
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. Gonzalez v. Thaler, 565 U.S. 134, 140-41
(2012) (citing Slack v. McDaniel, 529 U.S. 473, 484 (2000)).
We have independently reviewed the record and conclude that Armistead 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.
DISMISSED
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