Timothy Booker v. Gene Johnson


UNPUBLISHED PER CURIAM OPINION filed. Motion disposition in opinion--granting Motion for rehearing [998767239-2] Originating case number: 2:10-cv-00271-MSD-DEM Copies to all parties and the district court/agency. [998789999]. Mailed to: appellant. [11-6418]

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Appeal: 11-6418 Document: 28 Date Filed: 02/16/2012 Page: 1 of 3 ON REHEARING UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 11-6418 TIMOTHY LAMONT BOOKER, Petitioner - Appellant, v. GENE M. JOHNSON, Corrections, Director, 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-00271-MSD-DEM) Submitted: February 13, 2012 Decided: February 16, 2012 Before GREGORY, SHEDD, and DAVIS, Circuit Judges. Rehearing granted; appeal dismissed by unpublished per curiam opinion. Timothy Lamont Booker, Appellant Pro Se. Virginia Bidwell Theisen, Senior Assistant Attorney General, Richmond, Virginia, for Appellee. Unpublished opinions are not binding precedent in this circuit. Appeal: 11-6418 Document: 28 Date Filed: 02/16/2012 Page: 2 of 3 PER CURIAM: Timothy court’s judge order and Lamont accepting denying petition. In considered opinion an issued the rehearing, asserting appeal the of to appeal recommendation on Booker’s dismissed the seeks relief entitled to relief. and Booker claims, his but 28 of the U.S.C. on § December concluded the district magistrate 2254 19, that (2006) 2011, he we was not We denied a certificate of appealability appeal. that district Booker our petitioned opinion failed order denying court’s to for panel address his his motions to alter or amend the judgment filed pursuant to Fed. R. Civ. P. 59(e). Upon consideration of his petition, we grant panel rehearing. The denying his orders Rule denying 59(e) Booker’s motions are § 2254 not petition appealable and unless a circuit justice or judge issues a certificate of appealability. 28 U.S.C. § 2253(c)(1)(A) (2006). A certificate of appealability will not issue absent “a substantial showing of the denial of a constitutional right.” (2006). 28 U.S.C. § 2253(c)(2) When the district court denies relief on the merits, a prisoner reasonable satisfies this jurists would standard find that by the demonstrating district that court’s assessment of the constitutional claims is debatable or wrong. Slack v. McDaniel, 529 U.S. 473, 484 (2000); see Miller-El v. 2 Appeal: 11-6418 Document: 28 Date Filed: 02/16/2012 Page: 3 of 3 Cockrell, 537 U.S. 322, 336-38 (2003). denies relief demonstrate on both procedural that the When the district court grounds, dispositive the prisoner procedural ruling must is debatable, and that the petition states a debatable claim of the denial of a constitutional right. Slack, 529 U.S. at 484-85. Further, we review the denial of a Rule 59 motion for abuse of discretion. Cir. 2010). Sloas v. CSX Transp. Inc., 616 F.3d 380, 388 (4th We have independently reviewed the record and conclude that Booker has not made the requisite showing. Accordingly, we deny a certificate of appealability as to the district court’s denial of both Booker’s § 2254 petition and Booker’s motions to alter or amend the judgment, and dismiss the appeal. We dispense with oral argument because the facts and legal contentions are adequately presented in the materials before the court and argument would not aid the decisional process. REHEARING GRANTED; APPEAL DISMISSED 3

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