David Cudworth v. Gene Johnson

Filing

UNPUBLISHED PER CURIAM OPINION filed. Originating case number: 7:09-cv-00373-jlk-mfu Copies to all parties and the district court/agency. [998491517] [10-6459]

David Cudworth v. Gene Johnson

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Case: 10-6459 Document: 9

Date Filed: 12/27/2010

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UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 10-6459 DAVID JAMES CUDWORTH, Petitioner - Appellant, v. GENE M. JOHNSON, Director of the Virginia Department Corrections; CHIEF PROBATION OFFICER OF DISTRICT 15, Respondents - Appellees. of

Appeal from the United States District Court for the Western District of Virginia, at Roanoke. Jackson L. Kiser, Senior District Judge. (7:09-cv-00373-jlk-mfu) Submitted: December 16, 2010 Decided: December 27, 2010

Before GREGORY, DUNCAN, and DAVIS, Circuit Judges. Dismissed by unpublished per curiam opinion. David Bernard Hargett, HARGETT LAW, PLC, Glen Allen, Virginia, for Appellant. Craig Stallard, Assistant Attorney General, Richmond, Virginia, for Appellee. Unpublished opinions are not binding precedent in this circuit.

Dockets.Justia.com

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PER CURIAM: David court's order petition. James denying Cudworth relief seeks his to 28 appeal U.S.C. the district (2006)

on

§ 2254

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 of the denial of a

substantial

constitutional right."

28 U.S.C. § 2253(c)(2) (2006).

When the

district court denies relief on the merits, a prisoner satisfies this standard by demonstrating that reasonable jurists would

find that the district court's assessment of the constitutional claims is debatable or wrong. 484 (2000); see Miller-El v. Slack v. McDaniel, 529 U.S. 473, 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. 529 U.S. at 484-85. Slack,

We have independently reviewed the record

and conclude that Cudworth has not made the 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

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Case: 10-6459 Document: 9

Date Filed: 12/27/2010

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before

the

court

and

argument

would

not

aid

the

decisional

process. DISMISSED

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