Larry Phillips v. Gene Johnson

Filing 920090504

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UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 08-8376 LARRY D. PHILLIPS, Petitioner - Appellant, v. GENE M. JOHNSON, Corrections, Director of the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 Dismissed by unpublished per curiam opinion.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 Unpublished opinions are not binding precedent in this circuit.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

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