David Franklin v. Harold Clarke

Filing

UNPUBLISHED PER CURIAM OPINION filed. Motion dispositions in opinion--denying Motion for certificate of appealability (Local Rule 22(a)) [998631094-3]; denying Motion for transcript at government expense [998631094-2]; denying amended Motion for certificate of appealability [998645029-2]. Originating case number: 2:10-cv-00523-JBF-FBS. Copies to all parties and the district court/agency. [998727988]. Mailed to: David Franklin. [11-6728]

Appeal: 11-6728

Document: 11

Date Filed: 11/22/2011

Page: 1 of 3

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT

No. 11-6728

DAVID FRANKLIN,
Petitioner - Appellant,
v.
HAROLD W. CLARKE, Director of the Virginia Department of
Corrections,
Respondent - Appellee.

Appeal from the United States District Court for the Eastern
District of Virginia, at Norfolk.
Jerome B. Friedman, Senior
District Judge. (2:10-cv-00523-JBF-FBS)

Submitted:

November 17, 2011

Decided:

November 22, 2011

Before KING, DAVIS, and WYNN, Circuit Judges.

Dismissed by unpublished per curiam opinion.

David Franklin, 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Unpublished opinions are not binding precedent in this circuit.

Appeal: 11-6728

Document: 11

Date Filed: 11/22/2011

Page: 2 of 3

PER CURIAM:
David Franklin 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

(2006).

of

appealability.

28

U.S.C.

§ 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) (2006).
relief

on

the

demonstrating
district
debatable

merits,
that

court’s
or

a

When the district court denies

prisoner

reasonable

assessment

wrong.

Slack

satisfies

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

Franklin

independently
has

not

reviewed

made

the

record

requisite

and

showing.

Accordingly, we deny Franklin’s motions for a certificate of
appealability and dismiss the appeal.

We also deny Franklin’s

motion for a transcript at government expense and dispense with
oral

argument

because

the

facts
2

and

legal

contentions

are

Appeal: 11-6728

Document: 11

adequately

Date Filed: 11/22/2011

presented

in

the

Page: 3 of 3

materials

before

the

court

and

argument would not aid the decisional process.

DISMISSED

3