Stephen Herto v. John Murphy

USCA4 Appeal: 24-6961 Doc: 7 Filed: 02/10/2025 Pg: 1 of 3 UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 24-6961 STEPHEN D. HERTO, Petitioner - Appellant, v. JOHN T. MURPHY, Acting Warden, Respondent - Appellee. Appeal from the United States District Court for the Northern District of West Virginia, at Wheeling. John Preston Bailey, District Judge. (5:17-cv-00054-JPB) Submitted: January 31, 2025 Decided: February 10, 2025 Before KING and THACKER, Circuit Judges, and KEENAN, Senior Circuit Judge. Dismissed by unpublished per curiam opinion. Stephen D. Herto, Appellant Pro Se. Andrea Nease Proper, Michael Ray Williams, OFFICE OF THE ATTORNEY GENERAL OF WEST VIRGINIA, Charleston, West Virginia, for Appellee. Unpublished opinions are not binding precedent in this circuit. USCA4 Appeal: 24-6961 Doc: 7 Filed: 02/10/2025 Pg: 2 of 3 PER CURIAM: Stephen D. Herto seeks to appeal the district court’s order accepting the recommendation of the magistrate judge and denying relief on Herto’s 28 U.S.C. § 2254 petition, and the court’s subsequent order denying Herto’s Fed. R. Civ. P. 59(e) motion to alter or amend the judgment. 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) (citing Slack v. McDaniel, 529 U.S. 473, 484 (2000)). Limiting our review of the record to the issues raised in Herto’s informal brief, we conclude that Herto has not made the requisite showing. 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 and dismiss the appeal. We dispense with oral argument because the facts and legal contentions are adequately 2 USCA4 Appeal: 24-6961 Doc: 7 Filed: 02/10/2025 Pg: 3 of 3 presented in the materials before this court and argument would not aid the decisional process. DISMISSED 3