Franklin Smith v. Harold Clarke

UNPUBLISHED

UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT

No. 15-7432

FRANKLIN CHARLES SMITH,

Petitioner - Appellant,

HAROLD W. CLARKE, Director of Virginia Department of
Corrections,

Respondent – Appellee,

and

KENNETH STOLLE, Virginia Beach Sheriff,

Respondent.

Appeal from the United States District Court for the Eastern
District of Virginia, at Norfolk. Raymond A. Jackson, District
Judge. (2:13-cv-00479-RAJ-LRL)

Submitted: December 21, 2015 Decided: January 5, 2016

Before MOTZ and AGEE, Circuit Judges, and DAVIS, Senior Circuit
Judge.

Dismissed by unpublished per curiam opinion.

Franklin Charles Smith, Appellant Pro Se. Steven Andrew Witmer,
Senior Assistant Attorney General, Richmond, Virginia, for
Appellee.
Unpublished opinions are not binding precedent in this circuit.

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PER CURIAM:

Franklin Charles Smith seeks to appeal the district court’s

order accepting the recommendation of the magistrate judge and

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

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

Smith’s motion for a certificate of appealability and dismiss

the appeal. Smith’s motion for appointment of counsel is

denied. We dispense with oral argument because the facts and

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legal contentions are adequately presented in the materials

before this court and argument would not aid the decisional

process.

DISMISSED