Johnson v. Clarke

453 F. App'x 387

• Court: Court of Appeals for the Fourth Circuit
• Decided: November 17, 2011
• Docket: Nos. 11-6138, 11-6403
• Status: Published

Opinion

Dismissed by unpublished PER CURIAM opinion.

Unpublished opinions are not binding precedent in this circuit.

PER CURIAM:

• In these consolidated appeals, Albert Tyrone Johnson seeks to appeal the district court’s order denying relief on his 28 U.S.C. § 2254 (2006) petition (No. 11-6138) and its order denying leave to appeal in forma pauperis in appeal No. 11-6138 (No. 11-6403). In No. 11-6138, the district court’s order is not appealable unless a circuit justice or judge issues a certificate of appealability. See 28 U.S.C. § 2253(c)(1)(A) (2006). A certificate of ap-pealability will not issue absent “a substantial showing of the denial of a constitutional right.” 28 U.S.C. § 2253(c)(2). 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 Johnson has not made the requisite showing. Accordingly, we deny a certificate of appealability and dismiss the appeal in No. 11-6138.

Turning to appeal No. 11-6403, the denial of in forma pauperis status is immediately appealable. Roberts v. U.S. Dist. Ct., 339 U.S. 844, 845, 70 S.Ct. 954, 94 L.Ed. 1326 (1950) (per curiam). Because this court granted Johnson leave to appeal in forma pauperis in No. 11-6138, we dismiss the appeal in No. 11-6403 as moot. See Incumaa v. Ozmint, 507 F.3d 281, 286 (4th Cir.2007) (setting forth the principles of appellate mootness). 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.