Michael Owlfeather-Gorbey v. Warden

Opinion

USCA4 Appeal: 22-6879 Doc: 12 Filed: 09/11/2023 Pg: 1 of 2

UNPUBLISHED

UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT

No. 22-6879

(CHIEF) COL. MICHAEL S. OWLFEATHER-GORBEY,

Petitioner - Appellant,

v.

WARDEN, FCI Beckley,

Respondent - Appellee.

Appeal from the United States District Court for the Southern District of West Virginia, at Beckley. Frank W. Volk, District Judge. (5:22-cv-00138)

Submitted: September 5, 2023 Decided: September 11, 2023

Before KING, AGEE, and RICHARDSON, Circuit Judges.

Dismissed by unpublished per curiam opinion.

Michael S. Owlfeather-Gorbey, Appellant Pro Se.

Unpublished opinions are not binding precedent in this circuit. USCA4 Appeal: 22-6879 Doc: 12 Filed: 09/11/2023 Pg: 2 of 2

PER CURIAM:

(Chief) Col. Michael S. Owlfeather-Gorbey, a District of Columbia offender, seeks

to appeal the district court’s order accepting the recommendation of the magistrate judge

and dismissing his 28 U.S.C. § 2241 petition without prejudice. The order is not appealable

unless a circuit justice or judge issues a certificate of appealability. See 28 U.S.C.

§ 2253(c)(1); Madley v. U.S. Parole Comm’n, 278 F.3d 1306, 1310 (D.C. Cir. 2002); cf.

Jones v. Hendrix, 143 S. Ct. 1857, 1864, 1868 (2023); In re Wright, 826 F.3d 774, 783 (4th

Cir. 2016). 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).

When the district court denies relief on the merits, a prisoner satisfies this standard

by demonstrating that reasonable jurists could find the district court’s assessment of the

constitutional claims debatable or wrong. See Buck v. Davis, 580 U.S. 100, 115-17 (2017).

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. Gonzalez v. Thaler, 565 U.S. 134,

140-41 (2012) (citing Slack v. McDaniel, 529 U.S. 473, 484 (2000)).

We have independently reviewed the record and conclude that Owlfeather-Gorbey

has not made the requisite showing. Accordingly, we deny a certificate of appealability,

deny the pending motion, 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