Gina Benjamin v. Gene Johnson

Filing

UNPUBLISHED PER CURIAM OPINION filed. Originating case number: 2:10-cv-00043-DEM Copies to all parties and the district court/agency. [998527910] [10-7285]

Case: 10-7285

Document: 14

Date Filed: 02/18/2011

Page: 1

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT

No. 10-7285

GINA MONTEZ BENJAMIN,
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. Douglas E. Miller, Magistrate
Judge. (2:10-cv-00043-DEM)

Submitted:

February 10, 2011

Decided:

February 18, 2011

Before WILKINSON and DAVIS, Circuit Judges, and HAMILTON, Senior
Circuit Judge.

Dismissed by unpublished per curiam opinion.

Gina Montez Benjamin, Appellant Pro Se.
Eugene Paul Murphy,
OFFICE OF THE ATTORNEY GENERAL OF VIRGINIA, Richmond, Virginia,
for Appellee.

Unpublished opinions are not binding precedent in this circuit.

Case: 10-7285

Document: 14

Date Filed: 02/18/2011

Page: 2

PER CURIAM:
Gina Montez Benjamin seeks to appeal the magistrate
judge’s order dismissing as untimely her 28 U.S.C. § 2254 (2006)
petition. ∗
or

judge

The order is not appealable unless a circuit justice
issues

a

certificate

§ 2253(c)(1) (2006).
issue

absent

“a

appealability.

28

U.S.C.

A certificate of appealability will not

substantial

constitutional right.”

of

showing

of

the

denial

28 U.S.C. § 2253(c)(2) (2006).

of

a

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.

Slack v. McDaniel, 529 U.S. 473,

484

Cockrell,

(2000);

(2003).

see

Miller-El

v.

537

U.S.

322,

336-38

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 Benjamin 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

∗

The parties consented to the exercise of the district
court’s jurisdiction by a magistrate judge, as permitted by 28
U.S.C. § 636(c) (2006).

2

Case: 10-7285

Document: 14

Date Filed: 02/18/2011

Page: 3

and legal contentions are adequately presented in the materials
before

the

court

and

argument

would

not

aid

the

decisional

process.
DISMISSED

3