Cabey v. Boyette

UNPUBLISHED

UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT

No. 07-7369

RICHARD EDWARD CABEY,

Petitioner - Appellant,

versus

BONNIE BOYETTE, Superintendent,

Respondent - Appellee.

Appeal from the United States District Court for the Eastern
District of North Carolina, at Raleigh. Terrence W. Boyle,
District Judge. (5:03-hc-00816-BO)

Submitted: January 17, 2008 Decided: January 25, 2008

Before TRAXLER, SHEDD, and DUNCAN, Circuit Judges.

Affirmed in part; dismissed in part by unpublished per curiam
opinion.

Richard Edward Cabey, Appellant Pro Se. Clarence Joe DelForge, III,
NORTH CAROLINA DEPARTMENT OF JUSTICE, Raleigh, North Carolina, for
Appellee.

Unpublished opinions are not binding precedent in this circuit.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

Richard Edward Cabey 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. See 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. 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, 683-84 (4th Cir. 2001).

We have independently reviewed the record and conclude that Cabey

has not made the requisite showing. Accordingly, we deny a

certificate of appealability and dismiss the appeal. With respect

to Cabey’s double jeopardy claim, for which the district court

previously granted a certificate of appealability, we affirm the

denial of relief. 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.

AFFIRMED IN PART;
DISMISSED IN PART

- 2 -