Fitzgerald v. Johnson , 232 F. App'x 361 ( 2007 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 06-8014
THOMAS AGEE FITZGERALD,
Petitioner - Appellant,
versus
GENE M. JOHNSON, Director, Department of
Corrections,
Respondent - Appellee.
Appeal from the United States District Court for the Western
District of Virginia, at Roanoke. Glen E. Conrad, District Judge.
(7:06-cv-00427-GEC)
Submitted: June 6, 2007 Decided: July 12, 2007
Before WILLIAMS, Chief Judge, TRAXLER, Circuit Judge, and HAMILTON,
Senior Circuit Judge.
Dismissed by unpublished per curiam opinion.
Thomas Agee Fitzgerald, Appellant Pro Se. Donald Eldridge Jeffrey,
III, OFFICE OF THE ATTORNEY GENERAL OF VIRGINIA, Richmond,
Virginia, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Thomas Agee Fitzgerald seeks to appeal the district
court’s order 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 Fitzgerald has
not made the requisite showing. Accordingly, we deny Fitzgerald’s
motion for a certificate of appealability and dismiss the appeal.
We dispense with oral argument because the facts and legal
*
Fitzgerald also challenges the district court’s rejection of
his request to proceed on appeal in forma pauperis. Because this
court granted Fitzgerald in forma pauperis status for purposes of
this appeal, his challenge to the district court’s refusal to do so
is moot.
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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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