David Franklin v. Harold Clarke, No. 11-6728 (4th Cir. 2011)
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UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 11-6728 DAVID FRANKLIN, Petitioner - Appellant, v. HAROLD W. CLARKE, Director of the Virginia Department of Corrections, 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-00523-JBF-FBS) Submitted: November 17, 2011 Decided: November 22, 2011 Before KING, DAVIS, and WYNN, Circuit Judges. Dismissed by unpublished per curiam opinion. David Franklin, Appellant Pro Se. Eugene Paul Murphy, OFFICE OF THE ATTORNEY GENERAL OF VIRGINIA, Richmond, Virginia, for Appellee. Unpublished opinions are not binding precedent in this circuit. PER CURIAM: David Franklin seeks to appeal the district court s order accepting the recommendation of the magistrate judge and 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 (2006). of appealability. 28 U.S.C. § 2253(c)(1)(A) A certificate of appealability will not issue absent a substantial showing of the denial of a constitutional right. 28 U.S.C. § 2253(c)(2) (2006). relief on the demonstrating district debatable merits, that court s or a When the district court denies prisoner reasonable assessment wrong. Slack satisfies jurists this would of the v. McDaniel, standard find that U.S. the claims constitutional 529 by is 473, 484 (2000); see Miller-El v. Cockrell, 537 U.S. 322, 336-38 (2003). 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. Slack, 529 U.S. at the 484-85. conclude that We have Franklin independently has not reviewed made the record requisite and showing. Accordingly, we deny Franklin s motions for a certificate of appealability and dismiss the appeal. We also deny Franklin s motion for a transcript at government expense and dispense with oral argument because the facts 2 and legal contentions are adequately presented in the materials before the court and argument would not aid the decisional process. DISMISSED 3
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