Danny Cubbage v. Harold Clarke

Fourth Circuit

Danny Cubbage v. Harold Clarke

688 F. App'x 183

CourtCourt of Appeals for the Fourth Circuit

DecidedMay 3, 2017

Docket16-7646

StatusUnpublished

This text of 688 F. App'x 183 (Danny Cubbage v. Harold Clarke) is published on Counsel Stack Legal Research, covering Court of Appeals for the Fourth Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

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Danny Cubbage v. Harold Clarke, 688 F. App'x 183 (4th Cir. 2017).

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Opinion

Unpublished opinions are not binding precedent in this circuit.

PER CURIAM:

Danny Ray Cubbage seeks to appeal the district court’s order denying relief on his 28 U.S.C. § 2254 (2012) petition. The order is not appealable unless a circuit justice or judge issues a certificate of appealability. See 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, 120 S.Ct. 1595, 146 L.Ed.2d 542 (2000); see Miller-El v. Cockrell, 537 U.S. 322, 336-38, 123 S.Ct. 1029, 154 L.Ed.2d 931 (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, 120 S.Ct. 1595.

We have independently reviewed the record and conclude that Cubbage has not made the Requisite showing. To the extent he seeks to raise claims on appeal by merely incorporating his § 2254 petition by reference in his informal brief, such incorporation is not sufficient to preserve his claims, See 4th Cir. R. 34(b); McCarver v. Lee, 221 F.3d 583, 588 n.1 (4th Cir. 2000). And his failure to address the district court’s procedural default ruling in his informal brief forecloses his challenge to that ruling. 4th Cir. R. 34(b); Jackson v. Lightsey, 775 F.3d 170, 177 (4th Cir. 2014). *184 Accordingly, we 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 materials before this court and argument would not aid the decisional process.

DISMISSED

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Unpublished opinions are not binding precedent in this circuit.

PER CURIAM:

Danny Ray Cubbage seeks to appeal the district court’s order denying relief on his 28 U.S.C. § 2254 (2012) petition. The order is not appealable unless a circuit justice or judge issues a certificate of appealability. See 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, 120 S.Ct. 1595, 146 L.Ed.2d 542 (2000); see Miller-El v. Cockrell, 537 U.S. 322, 336-38, 123 S.Ct. 1029, 154 L.Ed.2d 931 (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, 120 S.Ct. 1595.

We have independently reviewed the record and conclude that Cubbage has not made the Requisite showing. To the extent he seeks to raise claims on appeal by merely incorporating his § 2254 petition by reference in his informal brief, such incorporation is not sufficient to preserve his claims, See 4th Cir. R. 34(b); McCarver v. Lee, 221 F.3d 583, 588 n.1 (4th Cir. 2000). And his failure to address the district court’s procedural default ruling in his informal brief forecloses his challenge to that ruling. 4th Cir. R. 34(b); Jackson v. Lightsey, 775 F.3d 170, 177 (4th Cir. 2014). *184 Accordingly, we 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 materials before this court and argument would not aid the decisional process.

DISMISSED

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