Thomas Tully v. Gene Johnson

Filing

UNPUBLISHED PER CURIAM OPINION filed. Motion disposition in opinion--denying Motion to proceed in forma pauperis (FRAP 24) [998866258-2] Originating case number: 3:10-cv-00299-JRS Copies to all parties and the district court/agency. [998981846]. Mailed to: Thomas Tully. [12-6864]

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UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT

No. 12-6864

THOMAS M. TULLY,
Petitioner – Appellant,
v.
GENE JOHNSON, Director, Virginia Department of Corrections,
Respondent - Appellee.

Appeal from the United States District Court for the Eastern
District of Virginia, at Richmond.
James R. Spencer, District
Judge. (3:10-cv-00299-JRS)

Submitted:

November 13, 2012

Decided: November 15, 2012

Before NIEMEYER, GREGORY, and DIAZ, Circuit Judges.

Dismissed by unpublished per curiam opinion.

Thomas M. Tully, Appellant Pro Se. Donald Eldridge Jeffrey, III,
Assistant Attorney General, Richmond, Virginia, for Appellee.

Unpublished opinions are not binding precedent in this circuit.

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PER CURIAM:
Thomas M. Tully seeks to appeal the district court’s
order

denying

his

Fed.

R.

Civ.

P.

60(b)

motions

for

reconsideration of the district court’s order denying relief on
his

28

U.S.C.

appealable

§ 2254

unless

certificate

of

a

(2006)

petition.

circuit

justice

or

28

U.S.C.

appealability.

The

order

judge

is

issues

not
a

§ 2253(c)(1)(A)

(2006); Reid v. Angelone, 369 F.3d 363, 369 (4th Cir. 2004).
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

merits,
that

court’s

debatable

or

a

prisoner

reasonable

assessment

wrong.

When the district court denies

Slack

satisfies

jurists

this

would

of

the

v.

McDaniel,

standard

find

constitutional
529

U.S.

by

that

the

claims

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 484-85.
We have independently reviewed the record and conclude
that Tully has not made the requisite showing.

Accordingly, we

deny a certificate of appealability, deny leave to proceed in
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forma pauperis, 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.

DISMISSED

3