Milton Brown v. Harold Clarke, No. 18-7004 (4th Cir. 2018)

Annotate this Case
Download PDF
UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 18-7004 MILTON BROWN, a/k/a Sultan Immanuel El-Bey, Petitioner - Appellant, v. HAROLD W. CLARKE, Respondent - Appellee. Appeal from the United States District Court for the Eastern District of Virginia, at Richmond. John A. Gibney, Jr., District Judge. (3:18-cv-00418-JAG-RCY) Submitted: October 23, 2018 Decided: October 26, 2018 Before NIEMEYER, KING, and WYNN, Circuit Judges. Dismissed by unpublished per curiam opinion. Milton Brown, Appellant Pro Se. Unpublished opinions are not binding precedent in this circuit. PER CURIAM: Milton Brown seeks to appeal the district court’s order dismissing without prejudice for failure to exhaust state court remedies his 28 U.S.C. § 2254 (2012) petition. The order is not appealable unless a circuit justice or judge issues a certificate of appealability. 28 U.S.C. § 2253(c)(1)(A) (2012). 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) (2012). 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 (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 Brown has not made the requisite showing. Accordingly, we deny a certificate of appealability, deny leave to proceed in forma pauperis, and dismiss the appeal. We dispense with oral argument because the facts and legal contentions are adequately presented in the materials before this court and argument would not aid the decisional process. DISMISSED 2