Harry Smith, Jr. v. Department of Correction, No. 10-7159 (4th Cir. 2010)
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UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 10-7159 HARRY SMITH, JR., Petitioner - Appellant, v. DEPARTMENT OF CORRECTIONS, Director, Respondent - Appellee. Appeal from the United States District Court for the Eastern District of Virginia, at Alexandria. Claude M. Hilton, Senior District Judge. (1:09-cv-00034-CMH-TCB) Submitted: December 16, 2010 Decided: December 28, 2010 Before GREGORY, DUNCAN, and DAVIS, Circuit Judges. Dismissed by unpublished per curiam opinion. Harry Smith, Jr., Appellant Pro Se. 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 Unpublished opinions are not binding precedent in this circuit.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: Harry Smith, Jr., seeks to appeal the district court s order denying relief on his 28 U.S.C. § 2254 (2006) petition. The order is not appealable unless a circuit justice or judge issues a certificate § 2253(c)(1) (2006). issue absent a of appealability. See 28 U.S.C. A certificate of appealability will not substantial constitutional right. 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 Accordingly, Smith s appeal. legal that we motion We have independently reviewed the record Smith deny for Slack, a has not made certificate appointment of the of requisite showing. appealability, counsel, and dismiss deny the We dispense with oral argument because the facts and contentions are adequately 2 presented in the materials before the court and argument would not aid the decisional process. DISMISSED 3
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