Dwayne Freeman v. Erik Hooks, No. 20-7434 (4th Cir. 2020)
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UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 20-7434 DWAYNE E. FREEMAN, Petitioner - Appellant, v. ERIK A. HOOKS, Respondent - Appellee. Appeal from the United States District Court for the Eastern District of North Carolina, at Raleigh. Louise W. Flanagan, District Judge. (5:19-hc-02104-FL) Submitted: December 17, 2020 Decided: December 22, 2020 Before THACKER, HARRIS, and QUATTLEBAUM, Circuit Judges. Dismissed by unpublished per curiam opinion. Dwayne E. Freeman, Appellant Pro Se. Unpublished opinions are not binding precedent in this circuit. PER CURIAM: Dwayne Edward Freeman seeks to appeal the district court’s order denying relief on his 28 U.S.C. § 2254 petition. The order is not appealable unless a circuit justice or judge issues a certificate of appealability. See 28 U.S.C. § 2253(c)(1)(A). 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). When the district court denies relief on the merits, a prisoner satisfies this standard by demonstrating that reasonable jurists could find the district court’s assessment of the constitutional claims debatable or wrong. See Buck v. Davis, 137 S. Ct. 759, 773-74 (2017). 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. Gonzalez v. Thaler, 565 U.S. 134, 140-41 (2012) (citing Slack v. McDaniel, 529 U.S. 473, 484 (2000)). Here, because Freeman had not exhausted his claim by presenting it in state court, the district court dismissed his petition on procedural grounds for failure to exhaust. On appeal, Freeman fails to show that he actually presented his claim in state court or that his time for doing so has expired—indeed, Freeman admitted in his § 2254 petition that he had filed no other petitions, motions, or applications regarding his claim. We therefore conclude that Freeman has not demonstrated that the court’s procedural ruling was debatable or wrong. Accordingly, we deny a certificate of appealability 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
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