Thorne v. Johnson

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 10-7369
RUDOLPH THORNE,
Petitioner – Appellant,
v.
GENE M. JOHNSON,
Respondent – Appellee.
Appeal from the United States District Court for the Eastern
District of Virginia, at Norfolk. Rebecca Beach Smith, District
Judge. (2:10-cv-00256-RBS-FBS)
Submitted: February 8, 2011 Decided: March 14, 2011
Before WILKINSON, KING, and DUNCAN, Circuit Judges.
Dismissed by unpublished per curiam opinion.
Rudolph Thorne, Appellant Pro Se.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Rudolph Thorne seeks to appeal the district court’s
order dismissing his successive 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); Jones v. Braxton, 392 F.3d 683, 687 (4th
Cir. 2004). 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 Thorne 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
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before the court and argument would not aid the decisional
process.
DISMISSED
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