Milton Cole v. Gene Johnson, No. 08-7030 (4th Cir. 2008)
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UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 08-7030 MILTON ORRETT COLE, Petitioner - Appellant, v. GENE M. JOHNSON, Corrections, Director of the Virginia Department of Respondent - Appellee. Appeal from the United States District Court for the Eastern District of Virginia, at Norfolk. Walter D. Kelley, Jr., District Judge. (2:07-cv-00489-WDK-JEB) Submitted: November 12, 2008 Decided: December 11, 2008 Before NIEMEYER, KING, and GREGORY, Circuit Judges. Dismissed in part; vacated and remanded in part by unpublished per curiam opinion. Rion O Neal Latimore, Cincinnati, Ohio, for Appellant. Robert H. Anderson, III, OFFICE OF THE ATTORNEY GENERAL OF VIRGINIA, Richmond, Virginia, for Appellee. Unpublished opinions are not binding precedent in this circuit. PER CURIAM: Milton court s judge order and accepting denying petition. * or Orrett the relief seeks to appeal recommendation on his 28 of U.S.C. the the § district magistrate 2254 (2000) The order is not appealable unless a circuit justice judge issues a certificate § 2253(c)(1) (2000). issue Cole 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 § 2253(c)(2) standard find of that district by any denial of (2000). demonstrating 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 Cole has not made the requisite showing with respect to his § 2254 claims alleging ineffective assistance of counsel. With regard to Cole s challenge to his continuing detention by the Department of Homeland Security, we vacate the district court s * Cole initially filed his habeas petition under 28 U.S.C. § 2241 (2000). However, it was construed by the district court as a § 2254 petition. 2 order and remand so that this claim may be properly considered under 28 U.S.C. § 2241 (2000) and in light of relevant precedent of the United States Supreme Court. See Clark v. Martinez, 543 U.S. 371 (2005); Demore v. Kim, 538 U.S. 510 (2003); Zadvydas v. Davis, 533 U.S. 678 (2001). Accordingly, we deny a certificate of appealability and dismiss the appeal in part, and vacate and remand in part for further proceedings. 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 IN PART; VACATED AND REMANDED IN PART 3
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