Robert Petrick v. Felix Taylor ( 2014 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 13-7544
ROBERT JAMES PETRICK,
Petitioner - Appellant,
v.
FELIX TAYLOR, Administrator, Pasquotank Correctional Inst.,
Respondent - Appellee.
Appeal from the United States District Court for the Middle
District of North Carolina, at Greensboro. James A. Beaty, Jr.,
District Judge. (1:13-cv-00541-JAB-LPA)
Submitted: January 29, 2014 Decided: February 19, 2014
Before KEENAN and THACKER, Circuit Judges, and HAMILTON, Senior
Circuit Judge.
Dismissed by unpublished per curiam opinion.
Robert James Petrick, Appellant Pro Se.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Robert James Petrick seeks to appeal the district
court’s order accepting the recommendation of the magistrate
judge and denying relief on his 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 Petrick has not made the requisite showing. Under our
decision in Breard v. Pruett, 134 F.3d 615, 619 (4th Cir. 1998),
“a state prisoner must exhaust all available state remedies
before he can apply for federal habeas relief.” Although
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Petrick alleged that he filed a MAR in state court, he provided
no evidence of that filing. Accordingly, it is unclear what
grounds for relief Petrick raised in that motion, whether any of
the claims he asserts in his Section 2254 petition were
presented to the North Carolina Court of Appeals, or on what
grounds the state court dismissed his motion. We therefore
conclude that the district court’s ruling that Petrick failed to
demonstrate that he exhausted his state court remedies is not
“debatable.” See Slack, 529 U.S. at 484-85. Accordingly, we
deny Petrick’s motion for appointment of counsel, 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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