Phillip Bay v. Harold Clarke , 699 F. App'x 164 ( 2017 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 17-6202
PHILLIP C. BAY,
Petitioner - Appellant,
v.
HAROLD W. CLARKE, Director of the Virginia Department of Corrections,
Respondent - Appellee.
Appeal from the United States District Court for the Eastern District of Virginia, at
Norfolk. Mark S. Davis, District Judge. (2:15-cv-00064-MSD-LRL)
Submitted: September 29, 2017 Decided: October 16, 2017
Before MOTZ, DIAZ, and HARRIS, Circuit Judges.
Dismissed by unpublished per curiam opinion.
Phillip C. Bay, Appellant Pro Se. Victoria Lee Johnson, OFFICE OF THE ATTORNEY
GENERAL OF VIRGINIA, Richmond, Virginia, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Phillip C. Bay 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 and the court’s order denying his Fed. R. Civ. P. 59(e) motion. The
orders are 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 Bay has not made
the requisite showing. Accordingly, we 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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