Gaston v. Johnson , 139 F. App'x 588 ( 2005 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 05-6657
JOHN POWHATAN KIRBY,
Petitioner - Appellant,
versus
GENE M. JOHNSON, Director, Virginia Department
of Corrections,
Respondent - Appellee.
Appeal from the United States District Court for the Western
District of Virginia, at Roanoke. Michael F. Urbanski, Magistrate
Judge. (CA-04-579-7)
Submitted: July 14, 2005 Decided: July 27, 2005
Before WILKINSON, LUTTIG, and MOTZ, Circuit Judges.
Dismissed by unpublished per curiam opinion.
John Powhatan Kirby, Appellant Pro Se. John H. McLees, Jr., OFFICE
OF THE ATTORNEY GENERAL OF VIRGINIA, Richmond, Virginia, for
Appellee.
Unpublished opinions are not binding precedent in this circuit.
See Local Rule 36(c).
PER CURIAM:
John Powhatan Kirby, a Virginia prisoner, seeks to appeal
the district court’s order denying relief on his petition filed
under 28 U.S.C. § 2254 (2000). An appeal may not be taken from the
final order in a § 2254 proceeding unless a circuit justice or
judge issues a certificate of appealability. 28 U.S.C.
§ 2253(c)(1) (2000). A certificate of appealability will not issue
for claims addressed by a district court absent “a substantial
showing of the denial of a constitutional right.” 28 U.S.C.
§ 2253(c)(2) (2000). A prisoner satisfies this standard by
demonstrating that reasonable jurists would find both that his
constitutional claims are debatable and that any dispositive
procedural rulings by the district court are also debatable or
wrong. See Miller-El v. Cockrell, 537 U.S. 322, 336 (2003);
Slack v. McDaniel, 529 U.S. 473, 484 (2000); Rose v. Lee, 252 F.3d
676, 683 (4th Cir. 2001). We have independently reviewed the
record and conclude that Kirby has not made the requisite showing.
Accordingly, we deny a certificate of appealability and dismiss the
appeal. We deny Kirby’s pending motion to strike testimony from
the record. 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
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