Keith Fitzgerald v. Loretta Kelly

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UNPUBLISHED PER CURIAM OPINION filed. Motion disposition in opinion--denying Motion to proceed in forma pauperis (FRAP 24) [998362299-2] Originating case number: 7:09-cv-00155-jct-mfu Copies to all parties and the district court/agency. [998416453] [10-6382]

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Keith Fitzgerald v. Loretta Kelly Doc. 0 Case: 10-6382 Document: 18 Date Filed: 09/01/2010 Page: 1 UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 10-6382 KEITH L. FITZGERALD, Petitioner - Appellant, v. LORETTA KELLY, Warden, Respondent - Appellee. Appeal from the United States District Court for the Western District of Virginia, at Roanoke. James C. Turk, Senior District Judge. (7:09-cv-00155-jct-mfu) Submitted: August 26, 2010 Decided: September 1, 2010 Before KING and DUNCAN, Circuit Judges, and HAMILTON, Senior Circuit Judge. Dismissed by unpublished per curiam opinion. Keith L. Fitzgerald, 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 Unpublished opinions are not binding precedent in this circuit. Dockets.Justia.com Case: 10-6382 Document: 18 Date Filed: 09/01/2010 Page: 2 PER CURIAM: Keith Fitzgerald seeks to appeal the district court's 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. (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. 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. We have independently reviewed Slack, 529 U.S. the record and conclude that Fitzgerald has not made the requisite showing. Accordingly, although we grant Fitzgerald's motion to amend his informal brief, we deny a certificate of appealability, deny leave to proceed in forma pauperis, and dismiss the appeal. dispense with oral argument because the facts and We legal 2 Case: 10-6382 Document: 18 Date Filed: 09/01/2010 Page: 3 contentions are adequately presented in the materials before the court and argument would not aid the decisional process. DISMISSED 3

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