FORTUNE III v. VIRGINIA (2019)

Maurice Patrick Fortune, III, a Virginia inmate, seeks to appeal the district court's order construing his 42 U.S.C. § 1983 (2012) complaint as a successive habeas petition under 28 U.S.C. § 2254 (2012) and dismissing the petition without prejudice for lack of prefiling authorization.^* 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, 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.

Because Fortune's informal brief does not challenge the basis for the district court's disposition, Fortune has forfeited appellate review of the court's order. See 4th Cir. R. 34(b); Jackson v. Lightsey, 775 F.3d 170, 177 (4th Cir. 2014) (“The informal brief is an important document; under Fourth Circuit rules, our review is limited to issues preserved in that brief.”). Accordingly, we deny a certificate of appealability, deny leave to proceed in forma pauperis, 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

FOOTNOTES

FOOTNOTE.   Our decision in Goode v. Cent. Va. Legal Aid Soc'y, Inc., 807 F.3d 619 (4th Cir. 2015), does not preclude this appeal because the district court dismissed the petition for a “reason[ ] unrelated to the contents of the pleadings.” Id. at 624.

PER CURIAM:

Dismissed by unpublished per curiam opinion. Unpublished opinions are not binding precedent in this circuit.