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requiring DC Code Offenders to obtain a certificate of appealability under § 2253(c), applicable only to state prisoners, in order to appeal denial of § 2241 petition
Summary of this case from Carter v. TrippOpinion
No. 16-7649
05-10-2017
MICHAEL S. GORBEY, a/k/a Michael S. Owlfeather-Gorbey, Petitioner - Appellant, v. CHRISTOPHER ZYCH, Warden, USP Lee, Respondent - Appellee.
Michael S. Gorbey, Appellant Pro Se.
UNPUBLISHED
Appeal from the United States District Court for the Western District of Virginia, at Roanoke. Norman K. Moon, Senior District Judge. (7:16-cv-00372-NKM-RSB) Before MOTZ, FLOYD, and HARRIS, Circuit Judges. Dismissed by unpublished per curiam opinion. Michael S. Gorbey, Appellant Pro Se. Unpublished opinions are not binding precedent in this circuit. PER CURIAM:
Michael S. Gorbey, a District of Columbia Code offender incarcerated at USP Lee, 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); see Madley v. U.S. Parole Comm'n, 278 F.3d 1306, 1308-10 (D.C. Cir. 2002). 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 (2000); see Miller-El v. Cockrell, 537 U.S. 322, 336-38 (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.
We have independently reviewed the record and conclude that Gorbey has not made the requisite showing. Accordingly, we deny Gorbey's motion to amend his appeal to include a claim not presented below, 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