Johnny Fisher v. John Garman

Filing 920090219

Opinion

UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT

No. 08-6824

JOHNNY DAVID FISHER, Petitioner - Appellant, v. JOHN GARMAN, Warden, St. Brides Correctional Center, Respondent - Appellee.

Appeal from the United States District Court for the Eastern District of Virginia, at Richmond. M. Hannah Lauck, Magistrate Judge. (3:07-cv-00630-MHL)

Submitted:

February 2, 2009

Decided:

February 19, 2009

Before MOTZ, GREGORY, and SHEDD, Circuit Judges.

Dismissed by unpublished per curiam opinion.

Johnny David Fisher, Appellant Pro Se. Eugene Paul Murphy, OFFICE OF THE ATTORNEY GENERAL OF VIRGINIA, Richmond, Virginia, for Appellee.

Unpublished opinions are not binding precedent in this circuit.

PER CURIAM: Johnny David Fisher seeks to appeal the district

court's order dismissing as untimely his 28 U.S.C. § 2254 (2006) petition. or judge The order is not appealable unless a circuit justice issues a certificate of appealability. 28 U.S.C.

§ 2253(c)(1) (2006). issue absent "a

A certificate of appealability will not showing § of the denial of a A that the or

substantial 28

constitutional prisoner reasonable

right."

U.S.C. standard

2253(c)(2) by any

(2006).

satisfies jurists

this would by

demonstrating assessment is of

find the

that

constitutional

claims

district

court

debatable

wrong and that any dispositive procedural ruling by the district court is likewise debatable. 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 Fisher has not made the of requisite showing. and Accordingly, dismiss the the we deny a We legal

certificate dispense

appealability oral argument

appeal. and

with

because

facts

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

DISMISSED

2