Mosbey v. Stein

Full title: C. JOSEPH MOSBEY, Petitioner - Appellant, v. JOSH STEIN; THE CORPORATE…

Court: UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT

Date published: Mar 29, 2021

No. 21-6061 (4th Cir. Mar. 29, 2021)

Opinion

No. 21-6061

03-29-2021

C. JOSEPH MOSBEY, Petitioner - Appellant, v. JOSH STEIN; THE CORPORATE STATE OF NORTH CAROLINA, Respondents - Appellees.

C. Joseph Mosbey, Appellant Pro Se.

PER CURIAM

UNPUBLISHED

Appeal from the United States District Court for the Middle District of North Carolina, at Greensboro. Thomas D. Schroeder, Chief District Judge. (1:20-cv-01002-TDS-JLW) Before THACKER, QUATTLEBAUM, and RUSHING, Circuit Judges. Dismissed by unpublished per curiam opinion. C. Joseph Mosbey, Appellant Pro Se. Unpublished opinions are not binding precedent in this circuit. PER CURIAM:

C. Joseph Mosbey seeks to appeal the district court's order accepting the recommendation of the magistrate judge and construing Mosbey's pleading as a 28 U.S.C. § 2254 petition and dismissing it as successive and unauthorized. 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). 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 (2012) (citing Slack v. McDaniel, 529 U.S. 473, 484 (2000)).

Limiting our review of the record to the issues raised in Mosbey's informal briefs, we conclude that Mosbey 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 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