Carlos Silva v. Frank Perry

Summarize
Check Treatment

Related Cases

                            UNPUBLISHED

                  UNITED STATES COURT OF APPEALS
                      FOR THE FOURTH CIRCUIT


                            No. 15-6775


CARLOS ALENJANDRO SILVA,

                Petitioner – Appellant,

          v.

FRANK L. PERRY,

                Respondent - Appellee.



Appeal from the United States District Court for the Middle
District of North Carolina, at Greensboro. Catherine C. Eagles,
District Judge. (1:15-cv-00167-CCE-JLW)


Submitted:   October 14, 2015             Decided:   November 10, 2015


Before GREGORY and FLOYD, Circuit Judges, and HAMILTON, Senior
Circuit Judge.


Dismissed by unpublished per curiam opinion.


Carlos Alenjandro Silva, 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Unpublished opinions are not binding precedent in this circuit.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:

       Carlos    Alenjandro        Silva     seeks      to    appeal        the     district

court’s    order     accepting      the     recommendation         of    the      magistrate

judge and dismissing as untimely 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

Silva has not made the requisite showing.                         Accordingly, we deny

Silva’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

                                             2
adequately   presented   in   the   materials   before   this   court   and

argument would not aid the decisional process.



                                                                DISMISSED




                                     3