Frank Altizer, Jr. v. Harold Clarke ( 2019 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 19-6461
FRANK ERVIN ALTIZER, JR.,
Petitioner - Appellant,
v.
HAROLD CLARKE, Director, Virginia Dept. of Corr.,
Respondent - Appellee.
Appeal from the United States District Court for the Eastern District of Virginia, at
Richmond. M. Hannah Lauck, District Judge. (3:19-cv-00036-MHL-RCY)
Submitted: August 9, 2019 Decided: October 16, 2019
Before GREGORY, Chief Judge, FLOYD, Circuit Judge, and TRAXLER, Senior Circuit
Judge.
Dismissed by unpublished per curiam opinion.
Frank Ervin Altizer, Jr., Appellant Pro Se.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Frank Ervin Altizer, Jr., 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. 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 Altizer has not made
the requisite showing. Accordingly, we deny Altizer’s motion for 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
2