Lipscombe v. Johnson, (4th Cir. 2004)

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UNPUBLISHED

UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT

No. 04-6155 SYLVESTER MAURICE LIPSCOMBE, Petitioner - Appellant, versus

GENE M. JOHNSON, Director of the Virginia

Department of Corrections, Respondent - Appellee. Appeal from the United States District Court for the Eastern

District of Virginia, at Norfolk. Raymond A. Jackson, District Judge. (CA-03-351-2)

Submitted: April 15, 2004 Decided: April 23, 2004

Before NIEMEYER and GREGORY, Circuit Judges, and HAMILTON, Senior

Circuit Judge.

Dismissed by unpublished per curiam opinion.

Sylvester Maurice Lipscombe, Appellant Pro Se. Robert H. Anderson,

III, OFFICE OF THE ATTORNEY GENERAL OF VIRGINIA, Richmond,

Virginia, for Appellee.

Unpublished opinions are not binding precedent in this circuit.

See Local Rule 36(c).

- 2 - PER CURIAM: Sylvester Maurice Lipscombe appeals from the district court§ 2254 (2000) petition and his motion to vacate his federal sentence pursuant to the report and

recommendation of a magistrate judge. An appeal may not be taken

to this court from the final order in a habeas corpus proceeding unless a c ircuit 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.§ 2253(c)(2) (2000).

A prisoner satisfies this standard by demonstrating that jurists of

reason would find that his constitutional claims are debatable and

that any dispositive procedural rulings by the district court are

also debatable or wrong. See

Miller-El v. Cockrell

, 537 U.S. 322, 336 (2003); Sl ack v. McDaniel

, 529 U.S. 473, 484 (2000); Rose v. Lee

, 252 F.3d 676, 683 (4th Cir. 2001).

We have reviewed the record and conclude that Lipscombe has not made the requisite showing. We therefore deny a

certificate of appealability and dismiss the appeal. We further

deny LipscombeÂ’s motion to proceed in forma pauperis. 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 in the decisional process. DISMISSED

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