Derek Smith v. Erik Hooks ( 2021 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 20-7183
DEREK ANTOINE SMITH,
Petitioner - Appellant,
v.
ERIK A. HOOKS,
Respondent - Appellee.
Appeal from the United States District Court for the Western District of North Carolina, at
Charlotte. Martin K. Reidinger, Chief District Judge. (3:19-cv-00291-MR)
Submitted: September 22, 2021 Decided: October 6, 2021
Before WILKINSON, HARRIS, and RUSHING, Circuit Judges.
Dismissed by unpublished per curiam opinion.
Derek Antoine Smith, Appellant Pro Se.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Derek Antoine Smith seeks to appeal the district court’s order denying relief on his
28 U.S.C. § 2254 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). 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)).
Limiting our review of the record to the issues raised in Smith’s informal brief and
supplemental informal briefs, we conclude that Smith has not made the requisite showing.
See 4th Cir. R. 34(b); see also Jackson v. Lightsey, 775 F.3d 170, 177 (4th Cir. 2014) (“The
informal brief is an important document; under Fourth Circuit rules, our review is limited
*
We previously remanded this case to the district court for the limited purpose of
enabling the court to determine whether Smith had shown excusable neglect or good cause
warranting an extension of the time to appeal. See Smith v. Hooks, 838 F. App’x 787 (4th
Cir. 2021) (No. 20-7183). On remand, the district court granted Smith an extension of time
to file a notice of appeal and deemed his notice of appeal timely filed.
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to issues preserved in that brief.”). Accordingly, we deny Smith’s motion for 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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