Evans v. Johnson , 256 F. App'x 616 ( 2007 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 07-7438
ROLAND EVANS,
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. Walter D. Kelley, Jr., District
Judge. (2:07-cv-00025-WDK)
Submitted: November 21, 2007 Decided: December 4, 2007
Before TRAXLER, SHEDD, and DUNCAN, Circuit Judges.
Dismissed by unpublished per curiam opinion.
Gail Avery Ball, BALL LEGAL FIRM, PC, Norfolk, Virginia, for
Appellant. Jonathan Mark Larcomb, OFFICE OF THE ATTORNEY GENERAL
OF VIRGINIA, Richmond, Virginia, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Roland Evans 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 Evans 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
*
Because Evans properly raised his allegations of juror
misconduct on direct appeal, the district court’s ruling that this
claim was procedurally defaulted is debatable or wrong.
Nevertheless, we decline to issue a certificate of appealability as
to this issue because our review of the record leaves no
uncertainty that the state court denial of this claim did not
result in a decision contrary to, or an unreasonable application
of, clearly established federal law. See 28 U.S.C. § 2254(d)(1)
(2000).
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contentions are adequately presented in the materials before the
court and argument would not aid the decisional process.
DISMISSED
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