Albrittonv.Johnson

United States Court of Appeals, Fourth CircuitOct 6, 2009
339 Fed. Appx. 296 (4th Cir. 2009)

No. 09-6736.

Submitted: September 29, 2009.

Decided: October 6, 2009.

Appeal from the United States District Court for the Eastern District of Virginia, at Norfolk. Jerome B. Friedman, District Judge. (2:08-cv-00443-JBF-FBS).

DeVinche Albritton, Appellant Pro Se. Kathleen Beatty Martin, Senior Assistant Attorney General, Richmond, Virginia, for Appellee.

Before NIEMEYER, MICHAEL, and MOTZ, Circuit Judges.


Dismissed by unpublished PER CURIAM opinion.

Unpublished opinions are not binding precedent in this circuit.


DeVinche Albritton seeks to appeal the district court's order accepting the recommendation of the magistrate judge and dismissing as untimely his 28 U.S.C. § 2254 (2006) petition. The order is not appealable unless a circuit justice or judge issues a certificate of appealability. 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). 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, 123 S.Ct. 1029, 154 L.Ed.2d 931 (2003); Slack v. McDaniel, 529 U.S. 473, 484, 120 S.Ct. 1595, 146 L.Ed.2d 542 (2000); Rose v. Lee, 252 F.3d 676, 683-84 (4th Cir. 2001). We have independently reviewed the record and conclude that Albritton has not made the requisite showing. Accordingly, we deny Albritton's petition for a writ of mandamus, 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.