Joe Fulgham v. Jack Barber


UNPUBLISHED PER CURIAM OPINION filed. Motion denied in opinion--denying Motion for other relief for release [1000024215-2], denying Motion for oral presentation [1000024214-2] Originating case number: 2:16-cv-00001-AWA-DEM Copies to all parties and the district court/agency. [1000027866]. Mailed to: Joe Fulgham. [16-7687]

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Appeal: 16-7687 Doc: 25 Filed: 02/22/2017 Pg: 1 of 3 UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 16-7687 JOE LEE FULGHAM, Petitioner – Appellant, v. JACK BARBER, M.D., Interim Commissioner of the Virginia Department of Behavioral Health and Development Services, Respondent - Appellee. Appeal from the United States District Court for the Eastern District of Virginia, at Norfolk. Arenda L. Wright Allen, District Judge. (2:16-cv-00001-AWA-DEM) Submitted: February 16, 2017 Before GREGORY, Chief Judge, HAMILTON, Senior Circuit Judge. Decided: DUNCAN, February 22, 2017 Circuit Judge, and Dismissed by unpublished per curiam opinion. Joe Lee Fulgham, Appellant Pro Se. Susan Mozley Harris, Assistant Attorney General, Richmond, Virginia, for Appellee. Unpublished opinions are not binding precedent in this circuit. Appeal: 16-7687 Doc: 25 Filed: 02/22/2017 Pg: 2 of 3 PER CURIAM: Joe Lee Fulgham 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 (2012) petition. not appealable unless a circuit certificate of appealability. A certificate of justice or The order is judge issues a 28 U.S.C. § 2253(c)(1)(A) (2012). appealability will not issue absent “a substantial showing of the denial of a constitutional right.” 28 U.S.C. § 2253(c)(2) (2012). relief on the demonstrating district merits, that court’s debatable or a When the district court denies prisoner reasonable assessment wrong. 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 Fulgham has not made the requisite showing. Accordingly, we deny a certificate of appealability and dismiss the appeal. We deny Fulgham’s motions for release and for oral presentation. We dispense with oral argument 2 because the facts and legal Appeal: 16-7687 Doc: 25 contentions are Filed: 02/22/2017 adequately Pg: 3 of 3 presented in the materials before this court and argument would not aid the decisional process. DISMISSED 3

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