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  • Redfear v. Smith, 4th Cir. (2008)

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    Emory Stevens Redfear appealed the district court's dismissal of his 28 U.S.C. § 2254 petition as untimely. The Fourth Circuit Court of Appeals denied Redfear's request for a certificate of appealability, which is required to appeal the denial of a § 2254 petition. The court independently reviewed the record and determined that Redfear did not make the requisite showing that reasonable jurists would find the district court's assessment of his constitutional claims debatable or wrong. As a result, the Fourth Circuit dismissed Redfear's appeal.

    Original Description:

    Filed: 2008-02-27 Precedential Status: Non-Precedential Docket: 07-7621

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    Emory Stevens Redfear appealed the district court's dismissal of his 28 U.S.C. § 2254 petition as untimely. The Fourth Circuit Court of Appeals denied Redfear's request for a certificate of appealability, which is required to appeal the denial of a § 2254 petition. The court independently reviewed the record and determined that Redfear did not make the requisite showing that reasonable jurists would find the district court's assessment of his constitutional claims debatable or wrong. As a result, the Fourth Circuit dismissed Redfear's appeal.

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    11 views2 pages

    Redfear v. Smith, 4th Cir. (2008)

    Uploaded by

    Scribd Government Docs
    Emory Stevens Redfear appealed the district court's dismissal of his 28 U.S.C. § 2254 petition as untimely. The Fourth Circuit Court of Appeals denied Redfear's request for a certificate of appealability, which is required to appeal the denial of a § 2254 petition. The court independently reviewed the record and determined that Redfear did not make the requisite showing that reasonable jurists would find the district court's assessment of his constitutional claims debatable or wrong. As a result, the Fourth Circuit dismissed Redfear's appeal.

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    of 2

    UNPUBLISHED

    UNITED STATES COURT OF APPEALS


    FOR THE FOURTH CIRCUIT

    No. 07-7621

    EMORY STEVENS REDFEAR,


    Petitioner - Appellant,
    v.
    LEWIS SMITH, Superintendent,
    Respondent - Appellee.

    Appeal from the United States District Court for the Western
    District of North Carolina, at Statesville.
    Graham C. Mullen,
    Senior District Judge. (5:07-cv-00073-GCM)

    Submitted:

    February 21, 2008

    Decided:

    February 27, 2008

    Before MOTZ and GREGORY, Circuit Judges, and WILKINS, Senior


    Circuit Judge.

    Dismissed by unpublished per curiam opinion.

    Emory Stevens Redfear, Appellant Pro Se. Clarence Joe DelForge III,
    NORTH CAROLINA DEPARTMENT OF JUSTICE, Raleigh, North Carolina, for
    Appellee.

    Unpublished opinions are not binding precedent in this circuit.

    PER CURIAM:
    Emory

    Stevens

    Redfear

    seeks

    to

    appeal

    the

    district

    courts order dismissing as untimely his 28 U.S.C. 2254 (2000)


    petition.
    judge

    The order is not appealable unless a circuit justice or

    issues

    certificate

    of

    appealability.

    28

    U.S.C.

    2253(c)(1) (2000). 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) (2000).

    A prisoner satisfies this

    standard by demonstrating that reasonable jurists would find that


    any assessment of the constitutional claims by the district court
    is debatable or wrong and that any dispositive procedural ruling by
    the district court is likewise debatable.

    Miller-El v. Cockrell,

    537 U.S. 322, 336-38 (2003); Slack v. McDaniel, 529 U.S. 473, 484
    (2000); Rose v. Lee, 252 F.3d 676, 683-84 (4th Cir. 2001).

    We have

    independently reviewed the record and conclude that Redfear 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


    the court and argument would not aid the decisional process.

    DISMISSED

    - 2 -

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