Tony Johnson v. McKither Bodison

Filing

UNPUBLISHED PER CURIAM OPINION filed. Motion disposition in opinion--denying Motion for rehearing and rehearing en banc [998801050-2] Originating case number: 6:09-cv-01037-TLW Copies to all parties and the district court/agency. [998872951]. Mailed to: Tony Stevenson Johnson. [10-6638]

Appeal: 10-6638

Doc: 16

Filed: 06/12/2012

Pg: 1 of 3

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT

No. 10-6638

TONY STEVENSON JOHNSON, a/k/a Tony S. Johnson,
Petitioner - Appellant,
v.
MCKITHER BODISON,
Respondent - Appellee.

On Remand from the Supreme Court of the United States.
(S. Ct. No. 10-9236)

Submitted:

May 31, 2012

Decided:

June 12, 2012

Before MOTZ, KING, and DAVIS, Circuit Judges.

Affirmed by unpublished per curiam opinion.

Tony Stevenson Johnson, Appellant Pro Se. William Edgar Salter,
III, Assistant Attorney General, Donald John Zelenka, Deputy
Assistant Attorney General, Columbia, South Carolina, for
Appellee.

Unpublished opinions are not binding precedent in this circuit.

Appeal: 10-6638

Doc: 16

Filed: 06/12/2012

Pg: 2 of 3

PER CURIAM:
Tony
court’s

order

Stevenson
adopting

Johnson
the

appealed

report

and

from

the

recommendation

district
of

the

magistrate judge and denying Johnson’s 28 U.S.C. § 2254 (2006)
petition.

While the district court granted a certificate of

appealability (“COA”) as to all issues raised by Johnson, we
overlooked
appeal.

this

fact

in

our

initial

consideration

of

this

Finding that Johnson had not made a substantial showing

of the denial of a constitutional right on appeal, we denied a
COA and dismissed the appeal.
Johnson filed a petition for a writ of certiorari in
the

Supreme

Court.

The

Supreme

Court

granted

certiorari,

vacated this Court’s judgment, and remanded for consideration of
Gonzalez v. Thaler, 132 S. Ct. 641 (2012).
132 S. Ct. 1088 (2012).
that

the

specificity

Johnson v. Bodison,

In Gonzalez, the Supreme Court ruled

requirements

of

28

U.S.C.

§ 2253(c)(2)

(2006) were not jurisdictional and that an appeal may proceed
based even upon a defective COA.

132 S. Ct. at 652.

Because

our procedural ruling was not based upon any finding that the
district court’s COA was defective, we conclude that the ruling
in Gonzalez has no effect on our consideration of the case.
On

remand,

we

have

examined

the

case

anew

on

its

merits, considering the record as well as Johnson’s arguments on
appeal, and we find no reversible error.
2

With regard to certain

Appeal: 10-6638

Doc: 16

Filed: 06/12/2012

Pg: 3 of 3

claims, Johnson fails to challenge dispositive legal and factual
findings by the district court in his informal brief and, thus,
has forfeited review.
remaining

claims,

4th Cir. R. 34(b).

after

a

careful

With regard to the

review

of

the

record,

we

affirm for the reasons stated in the magistrate judge’s opinion,
as adopted by the district court.

Johnson v. Bodison, No. 6:09-

cv-01037-TLW (D.S.C. Mar. 30, 2010).

We deny Johnson’s petition

for rehearing and for rehearing en banc.

We dispense with oral

argument because the facts and legal contentions are adequately
presented in the materials before the court and argument would
not aid the decisional process.
AFFIRMED

3