John Pate v. Roy Cooper ( 2016 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 16-7341
JOHN E. PATE,
Petitioner – Appellant,
v.
ROY COOPER,
Respondent - Appellee.
Appeal from the United States District Court for the Western
District of North Carolina, at Asheville. Frank D. Whitney,
Chief District Judge. (1:16-cv-00086-FDW)
Submitted: December 15, 2016 Decided: December 20, 2016
Before SHEDD, DUNCAN, and AGEE, Circuit Judges.
Dismissed by unpublished per curiam opinion.
John E. Pate, Appellant Pro Se.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
John E. Pate seeks to appeal the district court’s order
dismissing his 28 U.S.C. § 2254 (2012) 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)
(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 484-85.
We have independently reviewed the record and conclude that
Pate has not made the requisite showing. Accordingly, we deny
leave to proceed in forma pauperis, deny Pate’s motions for a
certificate of appealability and to appoint counsel, and dismiss
the appeal. We dispense with oral argument because the facts
and legal contentions are adequately presented in the materials
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before this court and argument would not aid the decisional
process.
DISMISSED
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