Kane Fosnaught v. Harold Clarke

UNPUBLISHED

UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT

No. 17-6256

KANE ANTHONY FOSNAUGHT,

Petitioner – Appellant,

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

Respondent - Appellee.

Appeal from the United States District Court for the Eastern District of Virginia, at
Norfolk. Rebecca Beach Smith, Chief District Judge. (2:16-cv-00115-RBS-LRL)

Submitted: May 23, 2017 Decided: May 26, 2017

Before KING, AGEE, and WYNN, Circuit Judges.

Dismissed by unpublished per curiam opinion.

Kane Anthony Fosnaught, Appellant Pro Se. Benjamin Hyman Katz, Assistant Attorney
General, Richmond, Virginia, for Appellee.

Unpublished opinions are not binding precedent in this circuit.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

Kane Anthony Fosnaught seeks to appeal the district court’s orders accepting the

recommendation of the magistrate judge and denying relief on his 28 U.S.C. § 2254

(2012) petition and denying reconsideration. 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 Fosnaught 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