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STITH v. RAMSEY (2019)

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United States Court of Appeals, Fourth Circuit.

Abdual Kareen STITH, Petitioner - Appellant, v. Lyndia Person RAMSEY, Commonwealth Attorney, Respondent - Appellee.

No. 19-6188

Decided: April 30, 2019

Before FLOYD and QUATTLEBAUM, Circuit Judges, and TRAXLER, Senior Circuit Judge. Abdual Kareen Stith, Appellant Pro Se.

Abdual Kareen Stith seeks to appeal the district court's order dismissing without prejudice his 28 U.S.C. § 2254 (2012) 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) (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.

Stith fails to challenge in his informal brief the district court's procedural ruling and, therefore, has not made the requisite showing. See 4th Cir. R. 34(b) (limiting review to issues raised in informal brief). Accordingly, we deny leave to proceed in forma pauperis, deny a certificate of appealability, deny Stith's request to appoint counsel, 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.   We conclude that the district court's order is final and appealable because no amendment could cure the defects identified by the court. See Goode v. Cent. Va. Legal Aid Soc'y, Inc., 807 F.3d 619, 623-24 (4th Cir. 2015).

PER CURIAM:

Dismissed by unpublished per curiam opinion. Unpublished opinions are not binding precedent in this circuit.

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