UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 10-7051
GREGORY T. GARY,
Petitioner – Appellant,
v.
GENE M. JOHNSON, Director, Virginia Department of
Corrections,
Respondent – Appellee.
Appeal from the United States District Court for the Eastern
District of Virginia, at Norfolk. Jerome B. Friedman, Senior
District Judge. (2:10-cv-00054-JBF-FBS)
Submitted: February 10, 2011 Decided: February 17, 2011
Before WILKINSON and DAVIS, Circuit Judges, and HAMILTON, Senior
Circuit Judge.
Dismissed by unpublished per curiam opinion.
Gregory T. Gary, Appellant Pro Se. Rosemary Virginia Bourne,
OFFICE OF THE ATTORNEY GENERAL OF VIRGINIA, Richmond, Virginia,
for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Gregory T. Gary seeks to appeal the district court’s
order dismissing his 28 U.S.C. § 2254 (2006) petition as
untimely filed. The order is not appealable unless a circuit
justice or judge issues a certificate of appealability. See 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 Gary has not made the requisite showing.
Accordingly, we deny a certificate of appealability and dismiss
the appeal. We further deny Gary’s motions for transcript at
government expense and for subpoena duces tecum. We dispense
with oral argument because the facts and legal contentions are
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adequately presented in the materials before the court and
argument would not aid the decisional process.
DISMISSED
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