Michael Hernandez v. David Mitchell, No. 14-7187 (4th Cir. 2014)

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UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 14-7187 MICHAEL E. HERNANDEZ, Petitioner - Appellant, v. DAVID MITCHELL, Respondent - Appellee. Appeal from the United States District Court for the Western District of North Carolina, at Charlotte. Frank D. Whitney, Chief District Judge. (3:14-cv-00359-FDW) Submitted: November 18, 2014 Decided: November 21, 2014 Before NIEMEYER, MOTZ, and GREGORY, Circuit Judges. Dismissed by unpublished per curiam opinion. Michael E. Hernandez, Appellant Pro Se. Unpublished opinions are not binding precedent in this circuit. PER CURIAM: Michael court’s order petition. or judge E. Hernandez denying on to his 28 appeal U.S.C. the district § 2254 (2012) The order is not appealable unless a circuit justice issues a certificate § 2253(c)(1)(A) (2012). issue relief seeks 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) (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 Hernandez has not made the requisite showing. Accordingly, we deny Hernandez’s motion to appoint counsel, deny leave to proceed in forma pauperis, deny a certificate of appealability, and dismiss the appeal. We dispense with oral argument because the facts and legal contentions are adequately presented in the 2 materials before this court and argument would not aid the decisional process. DISMISSED 3