Jimmy Rios v. Boyd Bennett

Filing 920100623

UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT

No. 09-6667

JIMMY D. RIOS, Petitioner - Appellant, v. BOYD BENNETT; RICK JACKSON, Respondents - Appellees.

Appeal from the United States District Court for the Western District of North Carolina, at Asheville. Graham C. Mullen, Senior District Judge. (1:08-cv-00094-GCM)

Submitted:

June 17, 2010

Decided:

June 23, 2010

Before MOTZ and Circuit Judge.

KING,

Circuit

Judges,

and

HAMILTON,

Senior

Dismissed by unpublished per curiam opinion.

Jimmy D. Rios, Appellant Pro Se. Mary Carla Hollis, Assistant Attorney General, Raleigh, North Carolina, for Appellee.

Unpublished opinions are not binding precedent in this circuit.

PER CURIAM: Jimmy D. Rios seeks to appeal the district court's orders denying relief on his 28 U.S.C. § 2254 (2006) petition and his motion for reconsideration. unless a circuit justice See 28 or judge The order is not appealable issues a certificate (2006). absent of A "a

appealability. certificate of

U.S.C.

§ 2253(c)(1) not issue

appealability

will

substantial showing of the denial of a constitutional right." 28 U.S.C. § 2253(c)(2) (2006). relief on the merits, that a When the district court denies satisfies would this standard that claims 473, by the is 484

prisoner

demonstrating district debatable

reasonable of v.

jurists the

find

court's or

assessment Slack

constitutional 529 U.S.

wrong.

McDaniel,

(2000); see Miller-El v. Cockrell, 537 U.S. 322, 336-38 (2003). When the district court denies relief on procedural grounds, the prisoner must demonstrate both that the dispositive procedural ruling is debatable, and that the petition states a debatable claim of the denial of a constitutional right. at 484-85. that We have Rios independently has not made reviewed the Slack, 529 U.S. the record and

conclude

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

2

before

the

court

and

argument

would

not

aid

the

decisional

process. DISMISSED

3