Benjamin William Fawley v. Gene Johnson


UNPUBLISHED PER CURIAM OPINION filed. Motion disposition in opinion--denying Motion to compel [998385106-2]; denying Motion to appoint/assign counsel [998383261-2] Originating case number: 2:09-cv-00452-MSD-FBS Copies to all parties and the district court/agency. [998419193] [10-6896]

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Benjamin William Fawley v. Gene Johnson Doc. 0 Case: 10-6896 Document: 19 Date Filed: 09/07/2010 Page: 1 UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 10-6896 BENJAMIN WILLIAM FAWLEY, Petitioner - Appellant, v. GENE M. JOHNSON, Corrections, Director of the Virginia Department of Respondent - Appellee. Appeal from the United States District Court for the Eastern District of Virginia, at Norfolk. Mark S. Davis, District Judge. (2:09-cv-00452-MSD-FBS) Submitted: August 26, 2010 Decided: September 7, 2010 Before KING and DUNCAN, Circuit Judges, and HAMILTON, Senior Circuit Judge. Dismissed by unpublished per curiam opinion. Benjamin William Fawley, Appellant Pro Se. Erin M. Kulpa, OFFICE OF THE ATTORNEY GENERAL OF VIRGINIA, Richmond, Virginia, for Appellee. Unpublished opinions are not binding precedent in this circuit. Case: 10-6896 Document: 19 Date Filed: 09/07/2010 Page: 2 PER CURIAM: Benjamin William Fawley seeks to appeal the district court's order accepting the recommendation of the magistrate judge and dismissing as untimely his 28 U.S.C. 2254 (2006) petition. or judge The order is not appealable unless a circuit justice issues a certificate of appealability. 28 U.S.C. 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. We have independently reviewed the record and conclude that Fawley has not made the requisite showing. Accordingly, we We Slack, deny a certificate of appealability and dismiss the appeal. deny his motion to appoint counsel and to compel provision of state court documents. We dispense with oral argument because 2 Case: 10-6896 Document: 19 Date Filed: 09/07/2010 Page: 3 the facts and legal contentions are adequately presented in the materials before the court and argument would not aid the decisional process. DISMISSED 3

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