Samuel Applewhite v. Travis Outlaw, No. 11-7032 (4th Cir. 2011)
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UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 11-7032 SAMUEL APPLEWHITE, Petitioner - Appellant, v. TRAVIS OUTLAW, Respondent Appellee, and STATE OF NORTH CAROLINA, Respondent. Appeal from the United States District Court for the Eastern District of North Carolina, at Raleigh. Terrence W. Boyle, District Judge. (5:10-hc-02043-BO) Submitted: November 15, 2011 Decided: November 18, 2011 Before NIEMEYER and KEENAN, Circuit Judges, and HAMILTON, Senior Circuit Judge. Dismissed by unpublished per curiam opinion. Samuel Applewhite, Assistant Attorney Appellee. Appellant General, Pro Se. Raleigh, Mary North Carla Hollis, Carolina, for Unpublished opinions are not binding precedent in this circuit. 2 PER CURIAM: Samuel Applewhite seeks to appeal the district court s order dismissing petition. or judge as untimely 28 U.S.C. § 2254 (2006) The order is not appealable unless a circuit justice issues a certificate § 2253(c)(1)(A) (2006). issue his absent a appealability. 28 U.S.C. A certificate of appealability will not substantial constitutional right. of showing of the denial 28 U.S.C. § 2253(c)(2) (2006). of a 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. 484 (2000); (2003). see Miller-El Slack v. McDaniel, 529 U.S. 473, v. Cockrell, 537 U.S. 322, 336-38 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. 529 U.S. at 484-85. Slack, We have independently reviewed the record and conclude that Applewhite has not made the requisite showing. Accordingly, we deny a certificate of appealability, deny leave to proceed dispense in with forma pauperis, oral argument and dismiss because 3 the the appeal. facts and We legal contentions are adequately presented in the materials before the court and argument would not aid the decisional process. DISMISSED 4
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