James Armistead v. Brad Perritt

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 16-6390
JAMES GREGORY ARMISTEAD,
Petitioner - Appellant,
v.
BRAD PERRITT,
Respondent - Appellee.
Appeal from the United States District Court for the Eastern
District of North Carolina, at Raleigh. James C. Fox, Senior
District Judge. (5:15-hc-02019-F)
Submitted: August 18, 2016 Decided: September 2, 2016
Before NIEMEYER, TRAXLER, and HARRIS, Circuit Judges.
Dismissed by unpublished per curiam opinion.
James Gregory Armistead, Appellant Pro Se. Clarence Joe
DelForge, III, NORTH CAROLINA DEPARTMENT OF JUSTICE, Raleigh,
North Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
James Gregory Armistead seeks to appeal the district
court’s order 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. 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
Armistead has not made the requisite showing. Accordingly, we
deny a certificate of appealability, deny leave to proceed in
forma pauperis, deny the motion to appoint counsel, and dismiss
the appeal. We construe Armistead’s motion for leave to file an
amended complaint as a motion for leave to file an amended or
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supplemental informal brief on appeal, and we grant the motion.
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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