Franklin Smith v. Sheriff of the City of Richmon

Filing

UNPUBLISHED PER CURIAM OPINION filed. Motion disposition in opinion--denying for certificate of appealability Originating case number: 2:09-cv-00513-MSD-FBS Copies to all parties and the district court/agency. [998539778] [10-7203]

Franklin Smith v. Sheriff of the City of Richmon

Doc. 0

Case: 10-7203

Document: 7

Date Filed: 03/08/2011

Page: 1

UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT

No. 10-7203

FRANKLIN C. SMITH, Petitioner ­ Appellant, v. SHERIFF OF THE CITY OF RICHMOND, 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-00513-MSD-FBS)

Submitted:

February 28, 2011

Decided:

March 8, 2011

Before TRAXLER, Chief Judge, and KING and DIAZ, Circuit Judges.

Dismissed by unpublished per curiam opinion.

Franklin C. Smith, Appellant Pro

Se.

Unpublished opinions are not binding precedent in this circuit.

Dockets.Justia.com

Case: 10-7203

Document: 7

Date Filed: 03/08/2011

Page: 2

PER CURIAM: Franklin C. 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: 10-7203

Document: 7

Date Filed: 03/08/2011

Page: 3

before

the

court

and

argument

would

not

aid

the

decisional

process. DISMISSED

3