Flood v. Johnson , 115 F. App'x 162 ( 2004 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 04-7499
MICHAEL R. FLOOD,
Petitioner - Appellant,
versus
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. Jerome B. Friedman, District
Judge. (CA-03-760-2)
Submitted: December 9, 2004 Decided: December 17, 2004
Before NIEMEYER, WILLIAMS, and TRAXLER, Circuit Judges.
Dismissed by unpublished per curiam opinion.
Michael R. Flood, Appellant Pro Se. Stephen R. McCullough,
Assistant Attorney General, Richmond, Virginia, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
See Local Rule 36(c).
PER CURIAM:
Michael R. Flood seeks to appeal the district court’s
order substantially accepting the recommendation of the magistrate
judge and denying relief on his petition filed under 28 U.S.C.
§ 2254 (2000). An appeal may not be taken from the final order in
a § 2254 proceeding 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 his
constitutional claims are debatable and that any dispositive
procedural rulings by the district court are also debatable or
wrong. See Miller-El v. Cockrell, 537 U.S. 322, 336 (2003);
Slack v. McDaniel, 529 U.S. 473, 484 (2000); Rose v. Lee, 252 F.3d
676, 683 (4th Cir. 2001). We have independently reviewed the
record and conclude that Flood has not made the requisite showing.
Moreover, Flood has not alleged or established cause and prejudice,
fundamental miscarriage of justice, or actual innocence, which
would enable us to consider his claims despite his procedural
default. See Sawyer v. Whitley, 505 U.S. 333, 338-39 (1992);
Murray v. Carrier, 477 U.S. 478, 495-96 (1986); Muth v. United
States, 1 F.3d 246, 250 (4th Cir. 1993). Accordingly, we deny a
certificate of appealability and dismiss the appeal. We dispense
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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
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