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689 F. App'x 165

Gorbey v. Zych

U.S. Courts of Appeals

Decided May 10, 2017

U.S. Courts of Appeals · decided 2017-05-10

Applies 28 U.S.C. § 2241 (Antiterrorism and Effective Death Penalty Act of 1996) · 28 U.S.C. § 2253 (Antiterrorism and Effective Death Penalty Act of 1996)

Relies on Slack v. McDaniel · Miller-El v. Cockrell Director Texas Department of Criminal Justice Institutional Division · Madley v. United States Parole Commission

Decided 2017-05-10

¶1Unpublished opinions are not binding precedent in this circuit.

PER CURIAM:

¶2Michael 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 Modley 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, 120 S.Ct. 1595, 146 L.Ed.2d 542 (2000); see Miller-El v. Cockrell, 537 U.S. 322, 336-38, 123 S.Ct. 1029, 154 L.Ed.2d 931 (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, 120 S.Ct. 1595.

¶3We have independently reviewed the record and conclude that Gorbey has not *166made 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.

¶4DISMISSED

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