Upshur v. Johnson

UNPUBLISHED

UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT

No. 06-7324

HODGES ANTHONY UPSHUR,

Petitioner - Appellant,

versus

GENE M. JOHNSON, Director, VDOC,

Respondent - Appellee.

Appeal from the United States District Court for the Eastern
District of Virginia, at Richmond. Richard L. Williams, Senior
District Judge. (3:05-cv-00598-RLW)

Submitted: December 20, 2006 Decided: January 12, 2007

Before NIEMEYER, TRAXLER, and DUNCAN, Circuit Judges.

Dismissed by unpublished per curiam opinion.

Hodges Anthony Upshur, Appellant Pro Se. Richard Bain Smith,
Assistant Attorney General, Richmond, Virginia, for Appellee.

Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:

Hodges Anthony Upshur seeks to appeal the district

court’s order denying relief on his 28 U.S.C. § 2254 (2000)

petition. 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

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. 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 Upshur 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

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