Phillips v. Johnson , 326 F. App'x 709 ( 2009 )


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  •                                UNPUBLISHED
    UNITED STATES COURT OF APPEALS
    FOR THE FOURTH CIRCUIT
    No. 08-8376
    LARRY D. PHILLIPS,
    Petitioner - Appellant,
    v.
    GENE M. JOHNSON,      Director   of   the   Virginia   Department   of
    Corrections,
    Respondent - Appellee.
    Appeal from the United States District Court for the Eastern
    District of Virginia, at Norfolk.       James E. Bradberry,
    Magistrate Judge. (2:08-cv-00383-JEB)
    Submitted:    April 23, 2009                      Decided:   May 4, 2009
    Before MICHAEL, GREGORY, and DUNCAN, Circuit Judges.
    Dismissed by unpublished per curiam opinion.
    Larry D. Phillips, 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    Unpublished opinions are not binding precedent in this circuit.
    PER CURIAM:
    Larry    D.     Phillips       seeks     to    appeal           the     magistrate
    judge’s       order    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 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)              (2006).         A
    prisoner        satisfies        this        standard        by        demonstrating              that
    reasonable       jurists       would     find       that     any        assessment           of     the
    constitutional         claims    by     the    district       court           is    debatable        or
    wrong and that any dispositive procedural ruling by the district
    court is likewise debatable.                    See Miller-El v. Cockrell, 
    537 U.S. 322
    , 336-38 (2003); Slack v. McDaniel, 
    529 U.S. 473
    , 484
    (2000); Rose v. Lee, 
    252 F.3d 676
    , 683-84 (4th Cir. 2001).                                           We
    have        independently      reviewed        the     record           and        conclude        that
    Phillips has not made the requisite showing.                                   Accordingly, we
    deny a certificate of appealability and dismiss the appeal.                                         We
    dispense       with     oral     argument       because           the     facts        and        legal
    *
    This case was decided by a magistrate judge                                       with       the
    parties’ consent under 
    28 U.S.C. § 636
    (c) (2006).
    2
    contentions are adequately presented in the materials before the
    court and argument would not aid the decisional process.
    DISMISSED
    3
    

Document Info

Docket Number: 08-8376

Citation Numbers: 326 F. App'x 709

Judges: Duncan, Gregory, Michael, Per Curiam

Filed Date: 5/4/2009

Precedential Status: Non-Precedential

Modified Date: 8/7/2023