Michael Gorbey v. Warden

• Court: Court of Appeals for the Fourth Circuit
• Decided: May 17, 2018
• Docket: 18-6051
• Status: Unpublished

Opinion

UNPUBLISHED

UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT

No. 18-6051

MICHAEL S. GORBEY,

Petitioner - Appellant,

v.

WARDEN, USP Lee,

Respondent - Appellee.

Appeal from the United States District Court for the Western District of Virginia, at Roanoke. Norman K. Moon, Senior District Judge. (7:17-cv-00218-NKM-RSB)

Submitted: May 10, 2018 Decided: May 17, 2018

Before NIEMEYER and DIAZ, Circuit Judges, and HAMILTON, 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Dismissed by unpublished per curiam opinion.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Unpublished opinions are not binding precedent in this circuit.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, a District of Columbia Code offender, seeks to appeal the

district court’s order dismissing his habeas petition for lack of jurisdiction. 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). ∗ 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, deny

leave to proceed in forma pauperis, deny leave to expand the record, and dismiss the

appeal.

∗ Because Gorbey was convicted in a District of Columbia court, he is required to obtain a certificate of appealability in order to appeal the denial of his habeas petition. See Madley v. United States Parole Comm’n, 278 F.3d 1306, 1310 (D.C. Cir. 2002).

2 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