Walter Gause v. Frank Perry | Court Opinion

Opinions

UNPUBLISHED

UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT

No. 17-6249

WALTER TIMOTHY GAUSE,

Petitioner - Appellant,

FRANK L. PERRY,

Respondent - Appellee.

Appeal from the United States District Court for the Western District of North Carolina, at Charlotte. Frank D. Whitney, Chief District Judge. (3:16-cv-00631-FDW)

Submitted: September 5, 2017 Decided: September 20, 2017

Before SHEDD and DUNCAN, Circuit Judges, and HAMILTON, Senior Circuit Judge.

Dismissed by unpublished per curiam opinion.

Walter Timothy Gause, Appellant Pro Se. Jess D. Mekeel, NORTH CAROLINA DEPARTMENT OF JUSTICE, Raleigh, North Carolina, for Appellee.

Unpublished opinions are not binding precedent in this circuit. PER CURIAM:

Walter Timothy Gause seeks to appeal the district court’s order denying relief on

his 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 grant Gause’s motion to amend his informal brief and construe Gause’s

motions for review, for static of court, to excuse procedural default, and for a certificate

of appealability as supplemental motions to amend the informal brief, and we grant leave

to amend. We have independently reviewed the record in light of the claims Gause raises

on appeal and conclude that he has not made the requisite showing for a certificate of

appealability. Accordingly, we deny a certificate of appealability, deny leave to proceed

in forma pauperis, deny Gause’s motions to appoint counsel, to dismiss the indictment,

for postjudgment discovery, for static urgency, for summary disposition, and for relief,

and we dismiss the appeal. We dispense with oral argument because the facts and legal

2 contentions are adequately presented in the materials before this court and argument

would not aid the decisional process.

DISMISSED