Gorbey v. Zych

689 F. App'x 165

• Court: Court of Appeals for the Fourth Circuit
• Decided: May 10, 2017
• Docket: No. 16-7649
• Status: Published

Opinion

Unpublished opinions are not binding precedent in this circuit.

PER CURIAM:

Michael S. Gorbey, a District of Columbia Code offender incarcerated at USP Lee, seeks to appeal the district court’s order dismissing without prejudice his 28 U.S.C. § 2241 (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); see Modley v. U.S. Parole Comm’n, 278 F.3d 1306, 1308-10 (D.C. Cir. 2002). 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 Gorbey has not made the requisite showing. Accordingly, we deny Gorbey’s motion to amend his appeal to include a claim not presented below, 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