Michael Gorbey v. Harold Clarke

USCA4 Appeal: 21-6654 Doc: 7 Filed: 10/05/2022 Pg: 1 of 2 UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 21-6654 MICHAEL S. GORBEY, Petitioner - Appellant, v. HAROLD W. CLARKE, Director, Virginia Department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, Senior District Judge. (2:12-cv-00667-RAJ-TEM) Submitted: September 15, 2022 Decided: October 5, 2022 Before KING, WYNN, and RICHARDSON, Circuit Judges. Dismissed by unpublished per curiam opinion. Michael S. Gorbey, Appellant Pro Se. Unpublished opinions are not binding precedent in this circuit. *2 USCA4 Appeal: 21-6654 Doc: 7 Filed: 10/05/2022 Pg: 2 of 2 PER CURIAM: Michael S. Gorbey seeks to appeal the district court’s order denying his motion to reconsider the district court’s prior order dismissing his 28 U.S.C. § 2254 petition. The order is not appealable unless a circuit justice or judge issues a certificate of appealability. See 28 U.S.C. § 2253(c)(1)(A); United States v. McRae, 793 F.3d 392, 400 & n.7 (4th Cir. 2015); Reid v. Angelone, 369 F.3d 363, 371 (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). When the district court denies relief on the merits, a prisoner satisfies this standard by showing that reasonable jurists could find the district court’s assessment of the constitutional claims debatable or wrong. See Buck v. Davis, 137 S. Ct. 759, 773-74 (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 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