Johnson v. Johnson

UNPUBLISHED

UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT

No. 09-7749

BENJAMIN JOHNSON,

Petitioner - Appellant,

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. Henry Coke Morgan, Jr.,
Senior District Judge. (2:09-cv-00287-HCM-TEM)

Submitted: May 20, 2010 Decided: May 24, 2010

Before WILKINSON, NIEMEYER, and DAVIS, Circuit Judges.

Dismissed by unpublished per curiam opinion.

Benjamin Johnson, Appellant Pro Se.

Unpublished opinions are not binding precedent in this circuit.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

Benjamin Johnson seeks to appeal the district court’s

order accepting the recommendation of the magistrate judge and

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. 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). 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 Johnson 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

2
before the court and argument would not aid the decisional

process.

DISMISSED