James Armistead v. Warden Herring, No. 21-7054 (4th Cir. 2021)

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UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 21-7054 JAMES GREGORY ARMISTEAD, Petitioner - Appellant, v. WARDEN HERRING, Respondent - Appellee. Appeal from the United States District Court for the Eastern District of North Carolina, at Raleigh. James C. Dever III, District Judge. (5:21-hc-02010-D) Submitted: November 9, 2021 Decided: December 22, 2021 Before NIEMEYER and HARRIS, Circuit Judges, and TRAXLER, Senior Circuit Judge. Dismissed by unpublished per curiam opinion. James G. Armistead, Appellant Pro Se. Unpublished opinions are not binding precedent in this circuit. PER CURIAM: James Gregory Armistead seeks to appeal the district court’s order dismissing his 28 U.S.C. § 2254 petition as an unauthorized, successive § 2254 petition. 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); Jones v. Braxton, 392 F.3d 683, 688 (4th Cir. 2004). 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 show both that the dispositive procedural ruling is debatable and 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)). We have independently reviewed the record and conclude that Armistead has not made the requisite showing. Accordingly, we deny his motion for a certificate of appealability, deny his recusal motion, 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 2

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