Cornelius Acres v. Director, Virginia DOC ( 2013 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 12-8069
CORNELIUS ACRES,
Petitioner – Appellant,
v.
DIRECTOR, VIRGINIA DEPARTMENT OF CORRECTIONS,
Respondent – Appellee,
and
COMMONWEALTH OF VIRGINIA,
Respondent.
Appeal from the United States District Court for the Eastern
District of Virginia, at Alexandria. James C. Cacheris, Senior
District Judge. (1:12-cv-00883-JCC-IDD)
Submitted: March 26, 2013 Decided: March 28, 2013
Before DUNCAN, FLOYD, and THACKER, Circuit Judges.
Dismissed by unpublished per curiam opinion.
Cornelius Acres, Appellant Pro Se.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Cornelius Acres seeks to appeal the district court’s
order dismissing without prejudice his 28 U.S.C. § 2241 (2006)
petition, which the court interpreted as a 28 U.S.C. § 2254(2006) petition, for failure to comply with a court order. The
order is not appealable unless a circuit justice or judge issues
a certificate of appealability. 28 U.S.C. § 2253(c)(1)(A)
(2006). 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) (2006). 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 Acres has not made the requisite showing. Accordingly, we
deny leave to proceed in forma pauperis, deny Acres’ motions for
a transcript at the Government’s expense and to overturn his
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conviction, 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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