Torian Gaither v. DAVID ZOOK, Warden

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 17-6690
TORIAN GAITHER,
Petitioner - Appellant,
v.
DAVID ZOOK, Warden,
Respondent - Appellee.
Appeal from the United States District Court for the Eastern District of Virginia, at
Richmond. M. Hannah Lauck, District Judge. (3:16-cv-00064-MHL-RCY)
Submitted: September 14, 2017 Decided: October 25, 2017
Before MOTZ, THACKER, and HARRIS, Circuit Judges.
Dismissed by unpublished per curiam opinion.
Torian Gaither, Appellant Pro Se. Elizabeth Kiernan Fitzgerald, OFFICE OF THE
ATTORNEY GENERAL OF VIRGINIA, Richmond, Virginia, for Appellee.
Unpublished opinions are not binding precedent in this circuit.

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PER CURIAM:
Torian Gaither seeks to appeal the district court’s second order accepting the
amended recommendation of the magistrate judge and denying relief on Gaither’s
28 U.S.C. § 2254 (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 (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 Gaither has not made
the requisite showing. Accordingly, we 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

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