Owen Leavitt v. Carlton Joyner , 672 F. App'x 301 ( 2017 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 16-7122
OWEN D. LEAVITT,
Petitioner - Appellant,
v.
CARLTON B. JOYNER,
Respondent - Appellee.
Appeal from the United States District Court for the Western
District of North Carolina, at Statesville. Frank D. Whitney,
Chief District Judge. (5:15-cv-00038-FDW)
Submitted: December 19, 2016 Decided: January 5, 2017
Before NIEMEYER and KING, Circuit Judges, and DAVIS, Senior
Circuit Judge.
Dismissed by unpublished per curiam opinion.
Owen D. Leavitt, Appellant Pro Se.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Owen D. Leavitt seeks to appeal the district court’s orders
dismissing as untimely his 28 U.S.C. § 2254 (2012) petition and
denying his Fed. R. Civ. P. 59(e) motion. These orders are 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
Leavitt has not made the requisite showing. Accordingly, we
deny a certificate of appealability and dismiss the appeal. We
deny Leavitt’s motion for appointment of counsel. We dispense
with oral argument because the facts and legal contentions are
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adequately presented in the materials before this court and
argument would not aid the decisional process.
DISMISSED
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