Simmons v. Ponton , 80 F. App'x 816 ( 2003 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 03-6856
HAYER SIMMONS,
Petitioner - Appellant,
versus
HENRY J. PONTON,
Respondent - Appellee.
Appeal from the United States District Court for the Eastern
District of Virginia, at Richmond. David G. Lowe, Magistrate Judge.
(CA-02-550)
Submitted: October 24, 2003 Decided: November 10, 2003
Before WIDENER, NIEMEYER, and KING, Circuit Judges.
Dismissed by unpublished per curiam opinion.
Hayer Simmons, Appellant Pro Se. Amy L. Marshall, OFFICE OF THE
ATTORNEY GENERAL OF VIRGINIA, Richmond, Virginia, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
See Local Rule 36(c).
PER CURIAM:
Hayer Simmons seeks to appeal the magistrate judge’s* order
denying relief on his petition filed under 28 U.S.C. § 2254 (2000).
The order is appealable only if 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, , 123 S. Ct.
1029, 1039 (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 Simmons has not
made the requisite showing. Accordingly, we deny a certificate of
appealability and dismiss the appeal. We deny Simmons’s motions
for an evidentiary hearing and for appointment of counsel. 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.
*
The parties consented to the jurisdiction of the magistrate
judge pursuant to 28 U.S.C. § 636(c) (2000).
2
DISMISSED
3