Sherman Brown v. Bernard W. Booker

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 22-6522
SHERMAN BROWN,
Petitioner - Appellant,
v.
BERNARD W. BOOKER,
Respondent - Appellee.
Appeal from the United States District Court for the Western District of Virginia, at
Roanoke. Elizabeth Kay Dillon, District Judge. (7:16-cv-00576-EKD-JCH)
Submitted: January 29, 2024 Decided: April 11, 2024
Before WILKINSON, QUATTLEBAUM, and RUSHING, Circuit Judges.
Dismissed by unpublished per curiam opinion.
Donald P. Salzman, SKADDEN, ARPS, SLATE, MEAGHER & FLOM LLP,
Washington, D.C., for Appellant.
Unpublished opinions are not binding precedent in this circuit.

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PER CURIAM:
Sherman Brown seeks to appeal the district court’s orders denying relief on his 28
U.S.C. § 2254 petition and denying reconsideration. The orders are not appealable unless
a circuit justice or judge issues a certificate of appealability. See 28 U.S.C.
§ 2253(c)(1)(A). 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 the district court
denies relief on the merits, a prisoner satisfies this standard by demonstrating that
reasonable jurists could find the district court’s assessment of the constitutional claims
debatable or wrong. See Buck v. Davis, 580 U.S. 100, 115-17 (2017). 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. Gonzalez v. Thaler, 565 U.S. 134, 140-41 (2012).
We have independently reviewed the record and conclude that Brown has not made
the requisite showing.* Accordingly, we deny a certificate of appealability 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
* Brown failed to challenge on appeal the district court’s independent determination
that his fiber analysis due process claim was barred by the one-year limitations period in
28 U.S.C. § 2254(d). Thus, he forfeited appellate review of that portion of the district
court’s order. See Jackson v. Lightsey, 775 F.3d 170, 177 (4th Cir. 2014).

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