Gilmore v. Commonwealth of Virginia

UNPUBLISHED

UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT

No. 03-6987

DWAYNE LAMONT GILMORE,

Petitioner - Appellant,

versus

COMMONWEALTH OF VIRGINIA,

Respondent - Appellee.

Appeal from the United States District Court for the Western
District of Virginia, at Roanoke. James C. Turk, Senior District
Judge. (CA-03-60-7)

Submitted: October 15, 2003 Decided: December 3, 2003

Before GREGORY and SHEDD, Circuit Judges, and HAMILTON, Senior
Circuit Judge.

Dismissed by unpublished per curiam opinion.

Dwayne Lamont Gilmore, Appellant Pro Se. Kathleen B. Martin,
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Unpublished opinions are not binding precedent in this circuit.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:

Dwayne Lamont Gilmore seeks to appeal the district court’s

order dismissing his petition filed under 28 U.S.C. § 2254 (2000)

as procedurally defaulted. An appeal may not be taken from the

final order in a § 2254 proceeding 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, , 123 S. Ct.

1029, 1039 (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 Gilmore has not

made the requisite showing. Accordingly, we deny Gilmore’s motion

to obtain an affidavit, 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