Don Newby v. Harold Clarke ( 2020 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 20-6350
DON NEWBY,
Petitioner - Appellant,
v.
HAROLD CLARKE, Director of the Virginia Department of Corrections,
Respondent - Appellee.
Appeal from the United States District Court for the Eastern District of Virginia, at
Richmond. John A. Gibney, Jr., District Judge. (3:18-cv-00714-JAG-RCY)
Submitted: August 20, 2020 Decided: August 25, 2020
Before GREGORY, Chief Judge, WYNN, and QUATTLEBAUM, Circuit Judges.
Dismissed by unpublished per curiam opinion.
Don Cornelius Newby, Appellant Pro Se.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Don Newby 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)).
We have independently reviewed the record and conclude that Newby 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
2