Robert Petrick v. Felix Taylor, No. 13-7544 (4th Cir. 2014)
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UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 13-7544 ROBERT JAMES PETRICK, Petitioner - Appellant, v. FELIX TAYLOR, Administrator, Pasquotank Correctional Inst., Respondent - Appellee. Appeal from the United States District Court for the Middle District of North Carolina, at Greensboro. James A. Beaty, Jr., District Judge. (1:13-cv-00541-JAB-LPA) Submitted: January 29, 2014 Decided: February 19, 2014 Before KEENAN and THACKER, Circuit Judges, and HAMILTON, Senior Circuit Judge. Dismissed by unpublished per curiam opinion. Robert James Petrick, Appellant Pro Se. Unpublished opinions are not binding precedent in this circuit. PER CURIAM: Robert court s judge order and petition. or judge James Petrick accepting denying relief to appeal recommendation on his 28 of U.S.C. the the § district magistrate 2254 (2012) The order is not appealable unless a circuit justice issues a certificate § 2253(c)(1)(A) (2012). issue the seeks absent a of appealability. 28 U.S.C. A certificate of appealability will not substantial constitutional right. showing of the denial 28 U.S.C. § 2253(c)(2) (2012). 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. Slack v. McDaniel, 529 U.S. 473, 484 Cockrell, (2000); (2003). see Miller-El v. 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. Slack, 529 U.S. at 484-85. We have independently reviewed the record and conclude that Petrick has not made the requisite showing. Under our decision in Breard v. Pruett, 134 F.3d 615, 619 (4th Cir. 1998), a state before he prisoner can must apply exhaust for all federal 2 available habeas state relief. remedies Although Petrick alleged that he filed a MAR in state court, he provided no evidence of that filing. Accordingly, it is unclear what grounds for relief Petrick raised in that motion, whether any of the claims he asserts in his Section 2254 petition were presented to the North Carolina Court of Appeals, or on what grounds the state court dismissed his motion. We therefore conclude that the district court s ruling that Petrick failed to demonstrate that he exhausted his state court remedies is not debatable. deny See Slack, 529 U.S. at 484-85. Petrick s certificate dispense of with contentions are motion for appointment appealability, and oral because argument adequately of dismiss presented in the the Accordingly, we counsel, the deny appeal. facts a We and legal materials before this Court and argument would not aid the decisional process. DISMISSED 3
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