Duy Ngoc Tran v. Johnson

UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 03-7568 PHILIP EDWARD MCAFEE, JR., Petitioner - Appellant, versus GENE JOHNSON, Director, Virginia Department of Corrections, Respondent - Appellee. Appeal from the United States District Court for the Western District of Virginia, at Roanoke. James C. Turk, Senior District Judge. (CA-02-1245-7) Submitted: December 11, 2003 Decided: December 23, 2003 Before NIEMEYER and MOTZ, Circuit Judges, and HAMILTON, Senior Circuit Judge. Dismissed by unpublished per curiam opinion. Philip Edward McAfee, Jr., Appellant Pro Se. Robert H. Anderson, III, 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 Unpublished opinions are not binding precedent in this circuit.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: Philip Edward McAfee, Jr., seeks to appeal the district court’s order denying relief on his petition filed under 28 U.S.C. § 2254 (2000). The order is not appealable 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 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 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, 336-38 (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 McAfee 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 contentions are adequately presented in the materials before the court and argument would not aid the decisional process. DISMISSED 2