Timothy Booker v. Gene Johnson

Filing

UNPUBLISHED PER CURIAM OPINION filed.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]

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UNPUBLISHED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Rehearing granted; appeal dismissed by unpublished per curiam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Unpublished opinions are not binding precedent in this circuit.

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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

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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