Brown v. Braxton

143 F. App'x 541

Opinion

PER CURIAM:

Michael Lynn Brown, a state prisoner, seeks to appeal the district court’s order construing his petition for writ of mandamus as a petition filed under 28 U.S.C. § 2254 (2000), granting Respondent’s motion to dismiss, and denying Brown relief.

The district court must give a prisoner notice and an opportunity to respond before construing a mislabeled or unlabeled post-conviction motion as an initial § 2254 petition. Castro v. United States, 540 U.S. 375, 383, 124 S.Ct. 786, 157 L.Ed.2d 778 (2003); United States v. Emmanuel, 288 F.3d 644, 649 (4th Cir.2002). Here, Brown was not entitled to notice before the court construed his mandamus petition as a § 2254 petition because the instant action is not his first § 2254 petition.

The order is not appealable unless a circuit justice or judge issues a certificate of appealability. 28 U.S.C. § 2253(c)(1) (2000). 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) (2000). A prisoner satisfies this standard by demonstrating that reasonable jurists would find that his constitutional claims are debatable and that any dispositive procedural rulings by the district court are also debatable or wrong. See Miller-El v. Cockrell, 537 U.S. 322, 336, 123 S.Ct. 1029, 154 L.Ed.2d 931 (2003); Slack v. McDaniel, 529 U.S. 473, 484, 120 S.Ct. 1595, 146 L.Ed.2d 542 (2000); Rose v. Lee, 252 F.3d 676, 683 (4th Cir.2001). We have independently reviewed the record and conclude that Brown has not made the requisite showing.

Accordingly, we deny Brown’s motion for a certificate of appealability and dismiss the appeal. We dispense with oral argument because the facts and legal contentions are adequately presented in the materials before the court and argument would not aid the decisional process.

DISMISSED