Phillips v. Johnson

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 02-7910
LARRY D. PHILLIPS,
Petitioner - Appellant,
versus
GENE M. JOHNSON, Director, Virginia Department
of Corrections,
Defendant - Appellee.
Appeal from the United States District Court for the Eastern
District of Virginia, at Norfolk. Rebecca Beach Smith, District
Judge. (CA-01-700-2)
Submitted: February 20, 2003 Decided: March 12, 2003
Before WIDENER and MICHAEL, Circuit Judges, and HAMILTON, Senior
Circuit Judge.
Dismissed by unpublished per curiam opinion.
Larry D. Phillips, Appellant Pro Se. Linwood Theodore Wells, Jr.,
Assistant Attorney General, Richmond, Virginia, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
See Local Rule 36(c).
PER CURIAM:
Larry D. Phillips seeks to appeal the district court’s order
accepting the recommendation of the magistrate judge and denying
relief on his petition filed under 28 U.S.C. § 2254 (2000). An
appeal may not be taken from the final order in a habeas corpus
proceeding unless a circuit justice or judge issues a certificate
of appealability. 28 U.S.C. § 2253(c)(1) (2000). When, as here,
a district court dismisses a § 2254 petition solely on procedural
grounds, a certificate of appealability will not issue unless the
petitioner can demonstrate both "(1) ‘that jurists of reason would
find it debatable whether the petition states a valid claim of the
denial of a constitutional right’ and (2) ‘that jurists of reason
would find it debatable whether the district court was correct in
its procedural ruling.’" Rose v. Lee, 252 F.3d 676, 684 (4th Cir.)
(quoting Slack v. McDaniel, 529 U.S. 473, 484 (2000)), cert.
denied, 534 U.S. 941 (2001).
We have reviewed the record and conclude for the reasons
stated by the district court that Phillips has not made the
requisite showing. See Phillips v. Johnson, No. CA-01-700-2 (E.D.
Va. Dec. 5, 2002). Accordingly, we deny a certificate of
appealability and dismiss the appeal. We dispense with oral
argument because the facts and legal contentions are adequately
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presented in the materials before the court and argument would not
aid the decisional process.
DISMISSED
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