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TOWERY v. HOOKS (2019)

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United States Court of Appeals, Fourth Circuit.

Richard Allen TOWERY, Jr., Petitioner - Appellant, v. Erik A. HOOKS, Secretary of Public Safety; Carlos Hernandez, Superintendent of Avery-Mitchell Correctional Inst., Respondents - Appellees.

No. 19-6060

Decided: May 29, 2019

Before KING and RICHARDSON, Circuit Judges, and SHEDD, Senior Circuit Judge. Richard Allen Towery, Jr., Appellant Pro Se.

Richard Allen Towery, Jr., a state prisoner, seeks to appeal the district court's order dismissing without prejudice his 28 U.S.C. § 2241 (2012) petition.* 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.

We have independently reviewed the record and conclude that Towery 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

FOOTNOTES

FOOTNOTE.   Our decision in Goode v. Central Virginia Legal Aid Society, 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Dismissed by unpublished per curiam opinion. Unpublished opinions are not binding precedent in this circuit.

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