Torian Gaither v. David Zook , 691 F. App'x 88 ( 2017 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 17-6323
TORIAN GAITHER,
Petitioner - Appellant,
v.
DAVID ZOOK, Warden,
Respondent - Appellee.
Appeal from the United States District Court for the Eastern District of Virginia, at
Richmond. M. Hannah Lauck, District Judge. (3:16-cv-00064-MHL-RCY)
Submitted: May 25, 2017 Decided: May 31, 2017
Before MOTZ, THACKER, and HARRIS, Circuit Judges.
Dismissed by unpublished per curiam opinion.
Torian Gaither, Appellant Pro Se. Elizabeth Kiernan Fitzgerald, OFFICE OF THE
ATTORNEY GENERAL OF VIRGINIA, Richmond, Virginia, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Torian Gaither seeks to appeal the district court’s order accepting the amended
recommendation of the magistrate judge and denying relief on Gaither’s 28 U.S.C. § 2254(2012) petition. The order is not appealable unless a circuit justice or judge issues a
certificate of appealability. 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 Gaither has not made
the requisite showing. Accordingly, we deny Gaither’s motion for a transcript at
government expense, deny a certificate of appealability, deny leave to proceed in forma
pauperis, 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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