Robert Earl Smith v. Superintendant Hackworth

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 19-6240
ROBERT EARL SMITH,
Petitioner - Appellant,
v.
SUPERINTENDANT HACKWORTH,
Respondent - Appellee.
Appeal from the United States District Court for the Eastern District of Virginia, at
Alexandria. Claude M. Hilton, Senior District Judge. (1:18-cv-01449-CMH-JFA)
Submitted: June 20, 2019 Decided: July 3, 2019
Before GREGORY, Chief Judge, RICHARDSON, Circuit Judge, and SHEDD, Senior
Circuit Judge.
Dismissed by unpublished per curiam opinion.
Robert Earl Smith, Appellant Pro Se.
Unpublished opinions are not binding precedent in this circuit.

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PER CURIAM:
Robert Earl Smith seeks to appeal the district court’s order dismissing his 28
U.S.C. § 2254 (2012) petition without prejudice. 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 have independently reviewed the record and conclude that Smith has not made
the requisite showing. Specifically, Smith’s failure to challenge in his informal brief the
district court’s finding that he has not yet exhausted his state court remedies forecloses
our consideration of that dispostitive ruling. See 4th Cir. R. 34(b); see also Jackson v.
Lightsey, 775 F.3d 170, 177 (4th Cir. 2014) (“The informal brief is an important
document; under Fourth Circuit rules, our review is limited to issues preserved in that
brief.”). 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

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facts and legal contentions are adequately presented in the materials before this court and
argument would not aid the decisional process.
DISMISSED

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