Miller v. Johnson , 406 F. App'x 695 ( 2010 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 10-6994
RICKY LEE MILLER,
Petitioner - Appellant,
v.
GENE JOHNSON, Director, Virginia Department of Corrections,
Respondent – Appellee,
and
COMMONWEALTH OF VIRGINIA,
Respondent.
Appeal from the United States District Court for the Eastern
District of Virginia, at Richmond. M. Hannah Lauck, Magistrate
Judge. (3:09-cv-00665-MHL)
Submitted: December 16, 2010 Decided: December 28, 2010
Before GREGORY, DUNCAN, and DAVIS, Circuit Judges.
Dismissed by unpublished per curiam opinion.
Ricky Lee Miller, Appellant Pro Se. Alice Theresa Armstrong,
OFFICE OF THE ATTORNEY GENERAL OF VIRGINIA, Richmond, Virginia,
for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Ricky Lee Miller seeks to appeal the magistrate
judge’s * order denying as successive his 28 U.S.C. § 2254 (2006)
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) (2006). 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). 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 (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 484-85. We have independently reviewed the record
and conclude that Miller has not made the requisite showing.
Accordingly, we deny a certificate of appealability and dismiss
the appeal. We dispense with oral argument because the facts
*
This case was decided by a magistrate judge with the
parties’ consent pursuant to 28 U.S.C. § 636(c) (2006).
2
and legal contentions are adequately presented in the materials
before the court and argument would not aid the decisional
process.
DISMISSED
3