Frye v. Warden , 275 F. App'x 226 ( 2008 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 08-6173
DEVON A. FRYE,
Petitioner - Appellant,
v.
WARDEN, Department of Corrections,
Respondent - Appellee.
Appeal from the United States District Court for the Eastern
District of Virginia, at Richmond. M. Hannah Lauck, Magistrate
Judge. (3:06-cv-00720-MHL)
Submitted: April 24, 2008 Decided: April 30, 2008
Before KING and SHEDD, Circuit Judges, and WILKINS, Senior Circuit
Judge.
Dismissed by unpublished per curiam opinion.
Devon A. Frye, Appellant Pro Se. Joshua Mikell Didlake, OFFICE OF
THE ATTORNEY GENERAL OF VIRGINIA, Richmond, Virginia, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Devon A. Frye seeks to appeal the magistrate judge’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 Frye 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
*
The case was decided by a magistrate judge with the parties’
consent. 28 U.S.C. § 636(c) (2000).
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