Michael Berry v. Commonwealth of Virginia ( 2020 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 20-6621
MICHAEL ALLEN BERRY,
Petitioner - Appellant,
v.
COMMONWEALTH OF VIRGINIA,
Respondent - Appellee.
Appeal from the United States District Court for the Eastern District of Virginia, at
Alexandria. Claude M. Hilton, Senior District Judge. (1:19-cv-01535-CMH-MSN)
Submitted: September 24, 2020 Decided: September 29, 2020
Before HARRIS and RICHARDSON, Circuit Judges, and TRAXLER, Senior Circuit
Judge.
Dismissed by unpublished per curiam opinion.
Michael Allen Berry, Appellant Pro Se.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Michael Allen Berry seeks to appeal the district court’s order dismissing his 28
U.S.C. § 2254 petition without prejudice for failure to pay the filing fee. 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 Berry has not made
the requisite showing. Moreover, Berry has since paid the filing fee and the district court
reopened Berry’s § 2254 proceeding. Accordingly, Berry has received the relief he seeks
on appeal. We therefore deny a certificate of appealability and dismiss the appeal as moot.
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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