Kelby Sheppard v. Gene Johnson

Filing

UNPUBLISHED PER CURIAM OPINION filed. Originating case number: 2:09-cv-00570-RBS-TEM. Copies to all parties and the district court/agency. [998491469] [10-6972]

Kelby Sheppard v. Gene Johnson

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Case: 10-6972 Document: 10

Date Filed: 12/27/2010

Page: 1

UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 10-6972 KELBY SHEPPARD, Petitioner ­ Appellant, v. GENE M. JOHNSON, Corrections, Director of the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. Rebecca Beach Smith, District Judge. (2:09-cv-00570-RBS-TEM) Submitted: December 16, 2010 Decided: December 27, 2010

Before GREGORY, DUNCAN, and DAVIS, Circuit Judges. Dismissed by unpublished per curiam opinion. Kelby Sheppard, Appellant Pro Se. Jennifer Conrad Williamson, OFFICE OF THE ATTORNEY GENERAL OF VIRGINIA, Richmond, Virginia, for Appellee. Unpublished opinions are not binding precedent in this circuit.

Dockets.Justia.com

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PER CURIAM: Kelby Sheppard seeks to appeal the district court's order accepting the recommendation of the magistrate judge and 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. A certificate of appealability 28 U.S.C. § 2253(c)(1) (2006). 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. that We have independently has not reviewed the Slack, 529 U.S. the record and

conclude

Sheppard

made

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: 10-6972 Document: 10

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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