Layton Cunningham v. Roy Cooper, III, No. 08-7196 (4th Cir. 2008)

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UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 08-7196 LAYTON SHARMALE CUNNINGHAM, Petitioner - Appellant, v. ROY A. COOPER, III, Attorney General of the State of North Carolina; JAMES HARDY, Administrator, Nash Correctional Institution, Nashville, North Carolina, Respondents - Appellees. Appeal from the United States District Court for the Middle District of North Carolina, at Durham. James A. Beaty, Jr., Chief District Judge. (1:07-cv-00295-JAB-PTS) Submitted: December 5, 2008 Decided: December 31, 2008 Before MICHAEL, KING, and GREGORY, Circuit Judges. Dismissed by unpublished per curiam opinion. Ann Bach Petersen, James R. Glover, GLOVER & PETERSEN, PA, Chapel Hill, North Carolina, for Appellant. Clarence Joe DelForge, III, Mary Carla Hollis, Assistant Attorneys General, Raleigh, North Carolina, for Appellees. Unpublished opinions are not binding precedent in this circuit. PER CURIAM: Layton court s order district Sharmale Cunningham accepting seeks the to appeal recommendation the of the magistrate judge and denying relief on his 28 U.S.C. § 2254 (2000) petition. The order is not appealable unless a circuit justice issues or judge a certificate U.S.C. § 2253(c)(1) (2000). not issue absent constitutional prisoner a satisfies reasonable jurists constitutional 28 this would claims by appealability. 28 A certificate of appealability will substantial right. of showing U.S.C. the the denial § 2253(c)(2) standard find of by that district (2000). demonstrating any assessment court is of 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 Cunningham has not made the requisite showing. certificate dispense of with appealability oral argument and Accordingly, we deny a dismiss because the the appeal. facts and 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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