Franklin Whitfield v. Anthony Hathaway, III

Filing 920080424

Opinion

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UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 08-6276 FRANKLIN WHITFIELD, Petitioner - Appellant, v. ANTHONY HATHAWAY, III, Respondent - Appellee. Appeal from the United States District Court for the Middle District of North Carolina, at Durham. Paul Trevor Sharp, Magistrate Judge. (1:07-cv-00453-PTS) Submitted: April 17, 2008 Decided: April 24, 2008 Before WILKINSON, NIEMEYER, and MICHAEL, Circuit Judges. Dismissed by unpublished per curiam opinion. Franklin Whitfield, Appellant Pro Se. Clarence Joe DelForge, III, Assistant Attorney General, NORTH CAROLINA DEPARTMENT OF JUSTICE, Raleigh, North Carolina, for Appellee. Unpublished opinions are not binding precedent in this circuit. PER CURIAM: Franklin Whitfield seeks to appeal the magistrate judge's order* denying relief on his 28 U.S.C. 2254 (2000) 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) (2000). A certificate of appealability will not issue absent "a substantial showing of the denial of a constitutional right." 2253(c)(2) (2000). that A prisoner satisfies would this 28 U.S.C. standard that by any demonstrating reasonable jurists find assessment of the constitutional claims by the district court is debatable or wrong and that any dispositive procedural ruling by the district court is likewise debatable. See Miller-El v. Cockrell, 537 U.S. 322, 336-38 (2003); Slack v. McDaniel, 529 U.S. 473, 484 (2000); Rose v. Lee, 252 F.3d 676, 683-84 (4th Cir. 2001). We have independently reviewed the record and conclude that Whitfield 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 the court and argument would not aid the decisional process. DISMISSED The parties consented to the magistrate judge's jurisdiction under 28 U.S.C. 636(c) (2000). - 2 - *

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