Gregory Gary v. Gene Johnson, No. 10-7051 (4th Cir. 2011)

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UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 10-7051 GREGORY T. GARY, Petitioner Appellant, v. GENE M. JOHNSON, Corrections, Director, Virginia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, 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 Dismissed by unpublished per curiam opinion.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 Unpublished opinions are not binding precedent in this circuit.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 untimely filed. his 28 U.S.C. § 2254 (2006) petition The order is not appealable unless a circuit justice or judge issues a certificate of appealability. U.S.C. § 2253(c)(1) (2006). not issue as absent a A certificate of appealability will substantial constitutional right. See 28 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. and conclude that Slack, We have independently reviewed the record 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 2 adequately presented in the materials before the court and argument would not aid the decisional process. DISMISSED 3

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