Cole v. Johnson , 305 F. App'x 56 ( 2008 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 08-7030
MILTON ORRETT COLE,
Petitioner - Appellant,
v.
GENE M. JOHNSON, Director of the Virginia Department of
Corrections,
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Dismissed in part; vacated and remanded in part by unpublished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Unpublished opinions are not binding precedent in this circuit.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 Orrett Cole 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 (2000)
petition. * The order is not appealable unless a circuit justice
or judge issues a certificate of appealability. 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. 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.
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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
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