Albert Johnson v. Gene Johnson

Filing

UNPUBLISHED PER CURIAM OPINION filed. Motion disposition in opinion--denying certificate of appealability Originating case number: 1:09-cv-01297-CMH-IDD. Copies to all parties and the district court. [998724708]. Mailed to: A. Johnson. [11-6138, 11-6403]

Appeal: 11-6138

Document: 20

Date Filed: 11/17/2011

Page: 1 of 4

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT

No. 11-6138

ALBERT TYRONE JOHNSON,
Petitioner - Appellant,
v.
HAROLD
W.
CLARKE,
Corrections,

Director,

Virginia

Department

of

Department

of

Respondent - Appellee.

No. 11-6403

ALBERT TYRONE JOHNSON,
Petitioner - Appellant,
v.
HAROLD
W.
CLARKE,
Corrections,

Director,

Virginia

Respondent - Appellee.

Appeals from the United States District Court for the Eastern
District of Virginia, at Alexandria.
Claude M. Hilton, Senior
District Judge. (1:09-cv-01297-CMH-IDD)

Submitted:

November 10, 2011

Decided:

November 17, 2011

Before GREGORY, DUNCAN, and DAVIS, Circuit Judges.

Appeal: 11-6138

Document: 20

Date Filed: 11/17/2011

Page: 2 of 4

Dismissed by unpublished per curiam opinion.

Albert Tyrone Johnson, Appellant Pro Se. John Michael Parsons,
Assistant Attorney General, Richmond, Virginia, for Appellee.

Unpublished opinions are not binding precedent in this circuit.

2

Appeal: 11-6138

Document: 20

Date Filed: 11/17/2011

Page: 3 of 4

PER CURIAM:
In these consolidated appeals, Albert Tyrone Johnson
seeks to appeal the district court’s order denying relief on his
28 U.S.C. § 2254 (2006) petition (No. 11-6138) and its order
denying leave to appeal in forma pauperis in appeal No. 11-6138
(No. 11-6403).

In No. 11-6138, the district court’s order is

not

unless

appealable

certificate
(2006).

of

a

circuit

appealability.

justice

See

28

or

judge

U.S.C.

issues

a

§ 2253(c)(1)(A)

A certificate of appealability will not issue absent “a

substantial showing of the denial of a constitutional right.”
28 U.S.C. § 2253(c)(2).
on

the

merits,

demonstrating
district
debatable

that

court’s
or

a

When the district court denies relief

prisoner

satisfies

reasonable

assessment

wrong.

Slack

jurists

this

would

of

the

v.

McDaniel,

standard

find

that

U.S.

the

claims

constitutional
529

by

is

473,

484

(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.

Slack, 529 U.S.

at

the

484-85.

conclude

that

We

have

Johnson

independently
has

not

made

reviewed
the

record

requisite

and

showing.

Accordingly, we deny a certificate of appealability and dismiss
the appeal in No. 11-6138.
3

Appeal: 11-6138

Document: 20

Date Filed: 11/17/2011

Page: 4 of 4

Turning to appeal No. 11-6403, the denial of in forma
pauperis

status

is

immediately

appealable.

Roberts

Dist. Ct., 339 U.S. 844, 845 (1950) (per curiam).

v.

U.S.

Because this

court granted Johnson leave to appeal in forma pauperis in No.
11-6138,

we

See Incumaa

dismiss
v.

the

Ozmint,

appeal

507

F.3d

(setting

forth

the

principles

dispense

with

oral

argument

of

in
281,

No.

11-6403

286

appellate

because

the

(4th

as

moot.

Cir.

2007)

mootness).
facts

and

We
legal

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

DISMISSED

4