Michael McEvily v. Gene Johnson

Filing 920090317

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UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 08-8370 MICHAEL MCEVILY, Petitioner - Appellant, v. GENE M. JOHNSON, Corrections, Director of the Virginia Department of Respondent - Appellee. Appeal from the United States District Court for the Eastern District of Virginia, at Norfolk. Henry Coke Morgan, Jr., Senior District Judge. (2:08-cv-00326-HCM-JEB; 7:08-cv-00405sgw-mfu) Submitted: March 12, 2009 Decided: March 17, 2009 Before MOTZ and Circuit Judge. SHEDD, Circuit Judges, and HAMILTON, Senior Dismissed by unpublished per curiam opinion. Michael McEvily, Appellant Pro Se. Unpublished opinions are not binding precedent in this circuit. PER CURIAM: Michael McEvily seeks to appeal the district court's order accepting the recommendation of the magistrate judge and dismissing as successive his 28 U.S.C. 2254 (2006) petition. The order is not appealable unless a circuit justice or judge issues a certificate of appealability. (2006). 28 U.S.C. 2253(c)(1) A certificate of appealability will not issue absent "a substantial showing of the denial of a constitutional right." 28 U.S.C. by 2253(c)(2) (2006). that A prisoner satisfies would this find standard demonstrating reasonable jurists that any 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. 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). that We have independently has not made reviewed the the record and conclude McEvily 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 2

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