Cunningham v. Cooper , 305 F. App'x 134 ( 2008 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 08-7196
LAYTON SHARMALE CUNNINGHAM,
Petitioner - Appellant,
v.
ROY A. COOPER, III, Attorney General of the State of North
Carolina; JAMES HARDY, Administrator, Nash Correctional
Institution, Nashville, North Carolina,
Respondents - Appellees.
Appeal from the United States District Court for the Middle
District of North Carolina, at Durham. James A. Beaty, Jr.,
Chief District Judge. (1:07-cv-00295-JAB-PTS)
Submitted: December 5, 2008 Decided: December 31, 2008
Before MICHAEL, KING, and GREGORY, Circuit Judges.
Dismissed by unpublished per curiam opinion.
Ann Bach Petersen, James R. Glover, GLOVER & PETERSEN, PA,
Chapel Hill, North Carolina, for Appellant. Clarence Joe
DelForge, III, Mary Carla Hollis, Assistant Attorneys General,
Raleigh, North Carolina, for Appellees.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Layton Sharmale Cunningham 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 Cunningham
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 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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