Michael Bethea v. Department of Correction

Filing

UNPUBLISHED PER CURIAM OPINION filed. Motion disposition in opinion--denying for certificate of appealability Originating case number: 3:09-cv-00613-MHL Copies to all parties and the district court/agency. [998711950]. Mailed to: Michael A. Bethea and Robert H.Anderson. [11-6982]

Appeal: 11-6982

Document: 6

Date Filed: 10/31/2011

Page: 1 of 3

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT

No. 11-6982

MICHAEL ALEXANDER BETHEA,
Petitioner - Appellant,
v.
DEPARTMENT OF CORRECTIONS, Director,
Respondent - Appellee.

Appeal from the United States District Court for the Eastern
District of Virginia, at Richmond. M. Hannah Lauck, Magistrate
Judge. (3:09-cv-00613-MHL)

Submitted:

October 11, 2011

Decided:

October 31, 2011

Before WILKINSON, WYNN, and DIAZ, Circuit Judges.

Dismissed by unpublished per curiam opinion.

Michael Alexander Bethea, Appellant Pro Se. Robert H. Anderson,
III, OFFICE OF THE ATTORNEY GENERAL OF VIRGINIA, Richmond,
Virginia, for Appellee.

Unpublished opinions are not binding precedent in this circuit.

Appeal: 11-6982

Document: 6

Date Filed: 10/31/2011

Page: 2 of 3

PER CURIAM:
Michael

Alexander

Bethea

seeks

to

appeal

the

magistrate judge’s final orders denying relief on his 28 U.S.C.
§ 2254 (2006) petition and denying his subsequent Fed. R. Civ.
P. 59(e) motion. *

These orders are not appealable unless a

circuit justice or judge issues a certificate of appealability.
See

28

U.S.C.

§ 2253(c)(1)

(2006).

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).

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

constitutional claims is debatable or wrong.

of

the

Slack v. McDaniel,

529 U.S. 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
petition

procedural

states

constitutional

a

right.

ruling

is

debatable
Slack,

debatable,

claim
529

of

U.S.

at

the

and

that

denial

484-85.

the

of
We

a

have

independently reviewed the record and conclude that Bethea has
not

made

the

requisite

showing.

*

Accordingly,

we

deny

a

Bethea consented to the exercise of jurisdiction by the
magistrate judge, as permitted by 28 U.S.C. § 636(c) (2006).

2

Appeal: 11-6982

Document: 6

certificate
dispense

of

with

Date Filed: 10/31/2011

appealability
oral

argument

and

Page: 3 of 3

dismiss

because

the

the

appeal.

facts

and

We
legal

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

DISMISSED

3