Rudolph Smith v. Gene Johnson

Filing

UNPUBLISHED PER CURIAM OPINION filed. Originating case number: 2:10-cv-00081-MSD-TEM. Copies to all parties and the district court/agency. [998488762] [10-7170]

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Rudolph Smith v. Gene Johnson Doc. 0 Case: 10-7170 Document: 11 Date Filed: 12/21/2010 Page: 1 UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 10-7170 RUDOLPH SMITH, Petitioner Appellant, v. GENE M. JOHNSON, Corrections, Director of the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. (2:10-cv-00081-MSD-TEM) Submitted: December 9, 2010 Decided: December 21, 2010 Before KING and GREGORY, Circuit Judges, and HAMILTON, Senior Circuit Judge. Dismissed by unpublished per curiam opinion. Rudolph Smith, Appellant Pro Se. Rosemary Virginia Bourne, OFFICE OF THE ATTORNEY GENERAL OF VIRGINIA, Richmond, Virginia, for Appellee. Unpublished opinions are not binding precedent in this circuit. Dockets.Justia.com Case: 10-7170 Document: 11 Date Filed: 12/21/2010 Page: 2 PER CURIAM: Rudolph Smith 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 made reviewed the Slack, 529 U.S. the record and conclude Smith 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 2 Case: 10-7170 Document: 11 Date Filed: 12/21/2010 Page: 3 before the court and argument would not aid the decisional process. DISMISSED 3

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