Brian Strebe v. Gene Johnson , 435 F. App'x 235 ( 2011 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 11-6335
BRIAN DAVID STREBE,
Petitioner – Appellant,
v.
GENE M. JOHNSON,
Respondent - Appellee.
Appeal from the United States District Court for the Eastern
District of Virginia, at Alexandria. T.S. Ellis, III, Senior
District Judge. (1:10-cv-00704-TSE-TRJ)
Submitted: June 16, 2011 Decided: June 21, 2011
Before NIEMEYER and GREGORY, Circuit Judges, and HAMILTON,
Senior Circuit Judge.
Dismissed by unpublished per curiam opinion.
Brian David Strebe, Appellant Pro Se. Benjamin Hyman Katz,
Assistant Attorney General, Richmond, Virginia, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Brian David Strebe seeks to appeal the district
court’s orders denying relief on his 28 U.S.C. § 2254 (2006)
petition and denying reconsideration. The orders are not
appealable unless a circuit justice or judge issues a
certificate of appealability. See 28 U.S.C. § 2253(c)(1)(A)
(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). 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 of the constitutional claims is
debatable or wrong. 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 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 Strebe has not made the requisite showing.
Accordingly, we deny a certificate of appealability, deny
Strebe’s motion to appoint counsel, and dismiss the appeal. We
dispense with oral argument because the facts and legal
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contentions are adequately presented in the materials before the
court and argument would not aid the decisional process.
DISMISSED
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