in order to satisfy § 2253(c), a petitioner must demonstrate that reasonable jurists would find the district court’s assessment of the constitutional claims debatable or wrong
How later courts described this case
- in order to satisfy § 2253(c), a petitioner must demonstrate that reasonable jurists would find the district court’s assessment of the constitutional claims debatable or wrong
Written by the judges who cited it.
The opinion
IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF NORTH CAROLINA
ASHEVILLE DIVISION
CIVIL CASE NO. 1:21-cv-00247-MR
EDDRICCO L. BROWN-BEY,1 )
)
Plaintiff, )
)
vs. )
)
STATE OF NORTH CAROLINA, et al., ) ORDER
)
Defendants. )
_______________________________ )
THIS MATTER is before the Court on the Plaintiff’s pro se “Emergency
Petition for Constitutional Rights Protected by the 5th and 8th [amendments]
Articles to the Bill of Rights of [1791].” [Doc. 8].
The pro se Petitioner, who is presently incarcerated in the North
Carolina Department of Safety, filed a an “Emergency Petition” in the instant
case that was construed as a Petition for Writ of Habeas Corpus pursuant to
28 U.S.C. § 2254. [Doc. 1]. On October 29, 2021, the Petition was dismissed
without prejudice as an unauthorized successive § 2254 petition and this
case was closed. [Docs. 3, 4]. He has filed a Notice of Appeal. [Doc. 8].
1 According to the North Carolina Department of Public Safety’s website, the Petitioner’s
name is Eddricco L. Brown. See https://webapps.doc.state.nc.us/opi/viewoffender.do?
method=view&offenderID=0700738&searchOffenderId=0700738&searchDOBRange=0
&listurl=pagelistoffendersearchresults&listpage=1 (last accessed Nov. 10, 2021); Fed.
R. Evid. 201.
The Petitioner has now filed the instant “Emergency Petition” in which
he again challenges his incarceration, and asks the Court to vacate his
judgment and immediately release him from custody. [Doc. 8]. The
“Emergency Petition” is construed as an Amended Petition for Writ of
Habeas Corpus pursuant to § 2254.
The § 2254 Petition has already been dismissed and the Amended
Petition does not establish that the Fourth Circuit has granted the Petitioner
authorization to file a second or successive habeas petition. There is no
active case or controversy before the Court, and the Amended Petition is
therefore dismissed. See e.g. Sevilla-Briones v. Hooks, No. 3:20-cv-00059-
MR, 2020 WL 6587663 W.D.N.C. Nov. 10, 2020) (denying a motion to
amend in a closed § 2254 case); Rudisill v. United States, No. 1:09CR262-
3-T, 2009 WL 2517013, at * 1 (W.D.N.C. Aug. 14, 2009) (in a § 2255 case,
noting that “this Court is unaware of any authority allowing Petitioner to
amend a closed case.”).
Pursuant to Rule 11(a) of the Rules Governing Section 2254 Cases,
the Court declines to issue a certificate of appealability as Petitioner has not
made a substantial showing of a denial of a constitutional right. 28 U.S.C. §
2253(c)(2); Miller-El v. Cockrell, 537 U.S. 322, 336-38 (2003) (in order to
satisfy § 2253(c), a petitioner must demonstrate that reasonable jurists would
find the district court’s assessment of the constitutional claims debatable or
wrong); Slack v. McDaniel, 529 U.S. 474, 484 (2000) (holding that when relief
is denied on procedural grounds, a petitioner must establish both that the
correctness of the dispositive procedural ruling is debatable, and that the
petition states a debatably valid claim of the denial of a constitutional right).
ORDER
IT IS, THEREFORE, ORDERED that Petitioner's “Emergency Petition
for Constitutional Rights Protected by the 5" and 8" [amendments] Articles
to the Bill of Rights of [1791]” [Doc. 8] is construed as an Amended Petition
for Writ of Habeas Corpus pursuant to 28 U.S.C. § 2254 and is DISMISSED.
IT IS FURTHER ORDERED that the Court declines to issue a
certificate of appealability pursuant to Rule 11(a) of the Rules Governing
Section 2254 Cases.
IT IS SO ORDERED. Signed: November 18, 2021
Se ee
Chief United States District Judge ES