CABBAGESTALK v. SCDC (2021)

Shaheen Cabbagestalk seeks to appeal the district court's order adopting the magistrate judge's recommendation and dismissing without prejudice his 28 U.S.C. § 2254 petition as an unauthorized, successive § 2254 petition and the district court's order denying his motion for reconsideration.^* The orders are not appealable unless a circuit justice or judge issues a certificate of appealability. See 28 U.S.C. § 2253(c)(1)(A). 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, as here, 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, 132 S.Ct. 641, 181 L.Ed.2d 619 (2012) (citing Slack v. McDaniel, 529 U.S. 473, 484, 120 S.Ct. 1595, 146 L.Ed.2d 542 (2000)).

Limiting our review of the record to the issues raised in Cabbagestalk's informal briefs, we conclude that Cabbagestalk has not made the requisite showing. See 4th Cir. R. 34(b); see also 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 Cabbagestalk's motion for bail or release pending appeal, 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.   Although the district court construed the motion as a Fed. R. Civ. P. 60(b) motion, it was filed within 28 days of the district court's dismissal order and should thus be construed as a Fed. R. Civ. P. 59(e) motion. See Fed. R. Civ. P. 59(e); MLC Auto., LLC v. Town of S. Pines, 532 F.3d 269, 277 (4th Cir. 2008).

PER CURIAM:

Dismissed by unpublished per curiam opinion. Unpublished opinions are not binding precedent in this circuit.