UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 15-7682
DAVID LEE SMITH,
Petitioner – Appellant,
v.
UNITED STATES OF AMERICA,
Respondent - Appellee.
Appeal from the United States District Court for the Eastern
District of North Carolina, at Raleigh. James C. Dever III,
Chief District Judge. (5:15-hc-02128-D)
Submitted: January 29, 2016 Decided: February 5, 2016
Before MOTZ, KEENAN, and THACKER, Circuit Judges.
Dismissed by unpublished per curiam opinion.
David Lee Smith, Appellant Pro Se.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
David Lee 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 motion 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
a certificate of appealability, deny leave to proceed in forma
pauperis, and dismiss the appeal. We further deny Smith’s
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petition for initial hearing en banc, * and motions and
supplemental motions for bail or release pending appeal, for
summary reversal, for leave to file an additional motion for
summary reversal, to stay the mandate, and all other pending
motions. 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
* The petition for initial hearing en banc was circulated to
the full court. No judge requested a poll under Fed. R. App. P.
35.
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