Michael Gorbey v. Harold Clarke

• Court: Court of Appeals for the Fourth Circuit
• Decided: October 2, 2018
• Docket: 18-6389
• Status: Unpublished

Opinion

UNPUBLISHED

UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT

No. 18-6389

MICHAEL S. GORBEY,

Petitioner - Appellant,

v.

HAROLD W. CLARKE, Director, Virginia Department of Corrections,

Respondent - Appellee.

Appeal from the United States District Court for the Eastern District of Virginia, at Norfolk. Raymond A. Jackson, District Judge. (2:12-cv-00667-RAJ-TEM)

Submitted: September 27, 2018 Decided: October 2, 2018

Before DUNCAN and WYNN, Circuit Judges, and SHEDD, Senior Circuit Judge.

Dismissed by unpublished per curiam opinion.

Michael S. Gorbey, Appellant Pro Se.

Unpublished opinions are not binding precedent in this circuit. PER CURIAM:

Michael S. Gorbey seeks to appeal the district court’s order denying his Fed. R.

Civ. P. 60(b) motion for reconsideration of 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. 28 U.S.C. § 2253(c)(1)(A) (2012); Reid v.

Angelone, 369 F.3d 363, 369 (4th Cir. 2004). 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 Gorbey has not

made the requisite showing. 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