Layton Cunningham v. Roy Cooper, III

Filing 920081231

Opinion

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UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 08-7196 LAYTON SHARMALE CUNNINGHAM, Petitioner - Appellant, v. ROY A. COOPER, III, Attorney General of the State of North Carolina; JAMES HARDY, Administrator, Nash Correctional Institution, Nashville, North Carolina, Respondents - Appellees. Appeal from the United States District Court for the Middle District of North Carolina, at Durham. James A. Beaty, Jr., Chief District Judge. (1:07-cv-00295-JAB-PTS) Submitted: December 5, 2008 Decided: December 31, 2008 Before MICHAEL, KING, and GREGORY, Circuit Judges. Dismissed by unpublished per curiam opinion. Ann Bach Petersen, James R. Glover, GLOVER & PETERSEN, PA, Chapel Hill, North Carolina, for Appellant. Clarence Joe DelForge, III, Mary Carla Hollis, Assistant Attorneys General, Raleigh, North Carolina, for Appellees. Unpublished opinions are not binding precedent in this circuit. PER CURIAM: Layton district court's Sharmale order Cunningham the seeks to appeal of the the accepting recommendation magistrate judge and denying relief on his 28 U.S.C. 2254 (2000) petition. justice or judge The order is not appealable unless a circuit issues a certificate of appealability. 28 U.S.C. 2253(c)(1) (2000). not issue absent "a A certificate of appealability will showing of the denial (2000). of a A that the or substantial 28 constitutional prisoner reasonable right." this would by U.S.C. standard 2253(c)(2) by any satisfies jurists 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 Cunningham has not made the requisite showing. certificate dispense of appealability oral argument and Accordingly, we deny a the appeal. and We legal dismiss the with because facts contentions are adequately presented in the materials before the court and argument would not aid the decisional process. DISMISSED 2

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