Cabey v. Boyette , 262 F. App'x 521 ( 2008 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 07-7369
RICHARD EDWARD CABEY,
Petitioner - Appellant,
versus
BONNIE BOYETTE, Superintendent,
Respondent - Appellee.
Appeal from the United States District Court for the Eastern
District of North Carolina, at Raleigh. Terrence W. Boyle,
District Judge. (5:03-hc-00816-BO)
Submitted: January 17, 2008 Decided: January 25, 2008
Before TRAXLER, SHEDD, and DUNCAN, Circuit Judges.
Affirmed in part; dismissed in part by unpublished per curiam
opinion.
Richard Edward Cabey, Appellant Pro Se. Clarence Joe DelForge, III,
NORTH CAROLINA DEPARTMENT OF JUSTICE, Raleigh, North Carolina, for
Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Richard Edward Cabey seeks to appeal the district court’s
order denying relief on his 28 U.S.C. § 2254 (2000) petition. The
order is not appealable unless a circuit justice or judge issues a
certificate of appealability. See 28 U.S.C. § 2253(c)(1) (2000).
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) (2000). A prisoner satisfies this standard by
demonstrating that reasonable jurists would find that any
assessment of the constitutional claims by the district court is
debatable or wrong and that any dispositive procedural ruling by
the district court is likewise debatable. See 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 Cabey
has not made the requisite showing. Accordingly, we deny a
certificate of appealability and dismiss the appeal. With respect
to Cabey’s double jeopardy claim, for which the district court
previously granted a certificate of appealability, we affirm the
denial of relief. 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.
AFFIRMED IN PART;
DISMISSED IN PART
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