Johnny Fisher v. John Garman, No. 08-6824 (4th Cir. 2009)

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UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 08-6824 JOHNNY DAVID FISHER, Petitioner - Appellant, v. JOHN GARMAN, Warden, St. Brides Correctional Center, Respondent - Appellee. Appeal from the United States District Court for the Eastern District of Virginia, at Richmond. M. Hannah Lauck, Magistrate Judge. (3:07-cv-00630-MHL) Submitted: February 2, 2009 Decided: February 19, 2009 Before MOTZ, GREGORY, and SHEDD, Circuit Judges. Dismissed by unpublished per curiam opinion. Johnny David Fisher, Appellant Pro Se. Eugene Paul Murphy, OFFICE OF THE ATTORNEY GENERAL OF VIRGINIA, Richmond, Virginia, for Appellee. Unpublished opinions are not binding precedent in this circuit. PER CURIAM: Johnny David Fisher seeks to appeal the district court s order dismissing as untimely his 28 U.S.C. § 2254 (2006) petition. or judge The order is not appealable unless a circuit justice issues a certificate § 2253(c)(1) (2006). issue absent constitutional prisoner a substantial right. jurists constitutional appealability. 28 U.S.C. A certificate of appealability will not satisfies reasonable of 28 this would claims by showing U.S.C. § the the denial 2253(c)(2) standard find of by that (2006). demonstrating any district of assessment court is a A that of the 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 Fisher has not made the certificate dispense of with requisite showing. appealability oral argument and Accordingly, dismiss because the the we deny appeal. facts and a We legal contentions are adequately presented in the materials before the court and argument would not aid the decisional process. DISMISSED 2

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