Henry Perry-Bey v. Gene Johnson

Filing 920100624

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UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 09-7797 HENRY PERRY-BEY, Petitioner - Appellant, v. GENE JOHNSON, Respondent - Appellee. Appeal from the United States District Court for the Eastern District of Virginia, at Alexandria. James C. Cacheris, Senior District Judge. (1:08-cv-00963-JCC-TRJ) Submitted: June 17, 2010 Decided: June 24, 2010 Before MOTZ and Circuit Judge. KING, Circuit Judges, and HAMILTON, Senior Dismissed by unpublished per curiam opinion. Henry Perry-Bey, Appellant Pro Se. Unpublished opinions are not binding precedent in this circuit. PER CURIAM: Henry Perry-Bey seeks to appeal the district court's order denying his pleading construed as a motion for reconsideration of the order denying relief on his 28 U.S.C. 2254 (2006) petition. The order is not appealable unless a circuit justice or judge issues a certificate of appealability. See 28 U.S.C. 2253(c)(1) (2006). A certificate of appealability will not issue absent "a substantial showing of the denial of a constitutional right." (2006). prisoner reasonable 28 U.S.C. 2253(c)(2) When the district court denies relief on the merits, a satisfies jurists this would standard find that by the demonstrating district that court's assessment of the constitutional claims is debatable or wrong. Slack v. McDaniel, 529 U.S. 473, 484 (2000); see Miller-El v. Cockrell, 537 U.S. 322, 336-38 (2003). denies relief both on procedural the When the district court the prisoner ruling must is grounds, demonstrate that dispositive procedural debatable, and that the petition states a debatable claim of the denial of a constitutional right. We have independently reviewed the Slack, 529 U.S. at 484-85. record and conclude that Perry-Bey 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 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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