Cornelius Acres v. Director, Virginia DOC, No. 12-8069 (4th Cir. 2013)

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UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 12-8069 CORNELIUS ACRES, Petitioner Appellant, v. DIRECTOR, VIRGINIA DEPARTMENT OF CORRECTIONS, Respondent Appellee, and COMMONWEALTH OF VIRGINIA, Respondent. Appeal from the United States District Court for the Eastern District of Virginia, at Alexandria. James C. Cacheris, Senior District Judge. (1:12-cv-00883-JCC-IDD) Submitted: March 26, 2013 Decided: March 28, 2013 Before DUNCAN, FLOYD, and THACKER, Circuit Judges. Dismissed by unpublished per curiam opinion. Cornelius Acres, Appellant Pro Se. Unpublished opinions are not binding precedent in this circuit. PER CURIAM: Cornelius Acres seeks to appeal the district court s order dismissing without prejudice his 28 U.S.C. § 2241 (2006) petition, which the court interpreted as a 28 U.S.C. § 2254 (2006) petition, for failure to comply with a court order. The order is not appealable unless a circuit justice or judge issues a certificate (2006). of appealability. 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) (2006). relief on the demonstrating district merits, that court s debatable or a prisoner reasonable assessment wrong. When the district court denies Slack satisfies jurists this would of the v. McDaniel, standard find constitutional 529 U.S. by that the claims is 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 Acres has not made the requisite showing. Accordingly, we deny leave to proceed in forma pauperis, deny Acres motions for a transcript at the Government s expense and to overturn his 2 conviction, deny a certificate of appealability, and dismiss the appeal. legal before We dispense with oral argument because the facts and contentions this court are adequately and argument presented would not in aid the the materials decisional process. DISMISSED 3