Michael Bearfield v. Carlton Joyner

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                            UNPUBLISHED

                  UNITED STATES COURT OF APPEALS
                      FOR THE FOURTH CIRCUIT


                            No. 16-6832


MICHAEL LINK BEARFIELD,

                Petitioner - Appellant,

          v.

CARLTON JOYNER, Warden,

                Respondent - Appellee.



Appeal from the United States District Court for the Eastern
District of North Carolina, at Raleigh.   Terrence W. Boyle,
District Judge. (5:15-hc-02223-BO)


Submitted:   September 29, 2016           Decided:   October 4, 2016


Before SHEDD, KEENAN, and HARRIS, Circuit Judges.


Dismissed by unpublished per curiam opinion.


Michael Link Bearfield, Appellant Pro Se.


Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:

      Michael Link Bearfield 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

Bearfield 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

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presented in the materials before this court and argument would

not aid the decisional process.

                                                      DISMISSED




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