Ricky Miller v. Gene Johnson

Filing

UNPUBLISHED PER CURIAM OPINION filed. Originating case number: 3:09-cv-00665-MHL Copies to all parties and the district court/agency. [998491952] [10-6994]

Ricky Miller v. Gene Johnson

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Case: 10-6994 Document: 7

Date Filed: 12/28/2010

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UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 10-6994 RICKY LEE MILLER, Petitioner - Appellant, v. GENE JOHNSON, Director, Virginia Department of Corrections, Respondent ­ Appellee, and COMMONWEALTH OF VIRGINIA, Respondent.

Appeal from the United States District Court for the Eastern District of Virginia, at Richmond. M. Hannah Lauck, Magistrate Judge. (3:09-cv-00665-MHL) Submitted: December 16, 2010 Decided: December 28, 2010

Before GREGORY, DUNCAN, and DAVIS, Circuit Judges. Dismissed by unpublished per curiam opinion. Ricky Lee Miller, Appellant Pro Se. Alice Theresa Armstrong, OFFICE OF THE ATTORNEY GENERAL OF VIRGINIA, Richmond, Virginia, for Appellee. Unpublished opinions are not binding precedent in this circuit.

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PER CURIAM: Ricky Lee Miller seeks to appeal the magistrate

judge's * order denying as successive his 28 U.S.C. § 2254 (2006) petition. 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 Miller 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

This case was decided by a magistrate judge with the parties' consent pursuant to 28 U.S.C. § 636(c) (2006). 2

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and legal contentions are adequately presented in the materials before the court and argument would not aid the decisional

process. DISMISSED

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