Cudworth v. Johnson , 405 F. App'x 772 ( 2010 )


Menu:
  •                             UNPUBLISHED
    UNITED STATES COURT OF APPEALS
    FOR THE FOURTH CIRCUIT
    No. 10-6459
    DAVID JAMES CUDWORTH,
    Petitioner - Appellant,
    v.
    GENE M. JOHNSON, Director of the Virginia Department           of
    Corrections; CHIEF PROBATION OFFICER OF DISTRICT 15,
    Respondents - Appellees.
    Appeal from the United States District Court for the Western
    District of Virginia, at Roanoke.     Jackson L. Kiser, Senior
    District Judge. (7:09-cv-00373-jlk-mfu)
    Submitted:   December 16, 2010            Decided:   December 27, 2010
    Before GREGORY, DUNCAN, and DAVIS, Circuit Judges.
    Dismissed by unpublished per curiam opinion.
    David Bernard Hargett, HARGETT LAW, PLC, Glen Allen, Virginia,
    for Appellant.     Craig Stallard, Assistant Attorney General,
    Richmond, Virginia, for Appellee.
    Unpublished opinions are not binding precedent in this circuit.
    PER CURIAM:
    David        James    Cudworth       seeks   to        appeal    the   district
    court’s    order    denying       relief   on     his    
    28 U.S.C. § 2254
        (2006)
    petition.     The order is not appealable unless a circuit justice
    or judge issues a certificate of appealability.                             See 
    28 U.S.C. § 2253
    (c)(1) (2006).             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) (2006).                   When the
    district court denies relief on the merits, a prisoner satisfies
    this    standard     by    demonstrating         that    reasonable         jurists    would
    find that the district court’s assessment of the constitutional
    claims is debatable or wrong.                Slack v. McDaniel, 
    529 U.S. 473
    ,
    484    (2000);     see    Miller-El   v.     Cockrell,        
    537 U.S. 322
    ,    336-38
    (2003).     When the district court denies relief on procedural
    grounds, the prisoner must demonstrate both that the dispositive
    procedural ruling is debatable, and that the petition states a
    debatable claim of the denial of a constitutional right.                              Slack,
    
    529 U.S. at 484-85
    .              We have independently reviewed the record
    and conclude that Cudworth 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
    2
    before   the   court   and   argument   would   not   aid   the   decisional
    process.
    DISMISSED
    3
    

Document Info

Docket Number: 10-6459

Citation Numbers: 405 F. App'x 772

Judges: Gregory, Duncan, Davis

Filed Date: 12/27/2010

Precedential Status: Non-Precedential

Modified Date: 11/5/2024