Jimmy Simons v. Gene Johnson, No. 10-6988 (4th Cir. 2010)
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UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 10-6988 JIMMY EUGENE SIMONS, Petitioner - Appellant, v. GENE M. JOHNSON, Corrections, Director, Virginia Department of Respondent Appellee. Appeal from the United States District Court for the Eastern District of Virginia, at Norfolk. Jerome B. Friedman, District Judge. (2:10-cv-00024-JBF-DEM) Submitted: September 30, 2010 Decided: October 15, 2010 Before KING and DUNCAN, Circuit Judges, and HAMILTON, Senior Circuit Judge. Dismissed by unpublished per curiam opinion. Jimmy Eugene Simons, Appellant Pro Se. Thomas Drummond Bagwell, Assistant Attorney General, Richmond, Virginia, for Appellee. Unpublished opinions are not binding precedent in this circuit. PER CURIAM: Jimmy court s judge order and judge Simons accepting the denying petition. or Eugene relief to appeal recommendation on his 28 of U.S.C. the the § district magistrate 2254 (2006) The order is not appealable unless a circuit justice issues a certificate § 2253(c)(1) (2006). issue seeks absent a appealability. 28 U.S.C. A certificate of appealability will not substantial constitutional right. of showing of the denial 28 U.S.C. § 2253(c)(2) (2006). of a 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 Cockrell, (2000); (2003). see Miller-El v. 537 U.S. 322, 336-38 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. 529 U.S. at 484-85. Slack, We have independently reviewed the record and conclude that Simons 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 3
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