Larry Phillips v. Gene Johnson

Filing 920090504

UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT

No. 08-8376

LARRY D. PHILLIPS, 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. James E. Bradberry, Magistrate Judge. (2:08-cv-00383-JEB)

Submitted:

April 23, 2009

Decided:

May 4, 2009

Before MICHAEL, GREGORY, and DUNCAN, Circuit Judges.

Dismissed by unpublished per curiam opinion.

Larry D. Phillips, 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Unpublished opinions are not binding precedent in this circuit.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: Larry judge's order D. Phillips relief seeks on to appeal 28 U.S.C. the magistrate (2006)

denying

his

§ 2254

petition. *

The order is not appealable unless a circuit justice See 28 U.S.C.

or judge issues a certificate of appealability. § 2253(c)(1) (2006). issue absent "a

A certificate of appealability will not showing U.S.C. standard find the that of the denial of a A that the or

substantial 28

constitutional prisoner reasonable

right." this would by

§ 2253(c)(2) by any

(2006).

satisfies jurists

demonstrating assessment is of

constitutional

claims

district

court

debatable

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). have independently reviewed the record and conclude We that

Phillips has not made the requisite showing.

Accordingly, we We

deny a certificate of appealability and dismiss the appeal. dispense with oral argument because the facts and

legal

This case was decided by a magistrate judge parties' consent under 28 U.S.C. § 636(c) (2006).

*

with

the

2

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

DISMISSED

3