James Armistead v. Mr. Herring ( 2021 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 21-7052
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: November 9, 2021 Decided: December 2, 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Dismissed by unpublished per curiam opinion.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Unpublished opinions are not binding precedent in this circuit.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 post-judgment order
denying his motion for leave to file an amended memorandum of law and evidence after
the district court dismissed his 28 U.S.C. § 2254 petition as successive. ∗ 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 the district court denies relief on the merits, a prisoner satisfies this standard
by demonstrating that reasonable jurists could find the district court’s assessment of the
constitutional claims debatable or wrong. See Buck v. Davis, 137 S. Ct. 759, 773-74 (2017).
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. 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 his motion for a certificate of
appealability, deny his motions for recusal and transcripts at government expense, and
dismiss the appeal. We dispense with oral argument because the facts and legal contentions
∗
We previously denied a certificate of appealability and dismissed Armistead’s
appeal of the district court’s order dismissing his § 2254 petition as successive. See
Armistead v. Herring, 845 F. App’x 267 (4th Cir. 2021) (No. 21-6016).
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are adequately presented in the materials before this court and argument would not aid the
decisional process.
DISMISSED
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