Thomas Tully v. Gene Johnson, (4th Cir. 2011)

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UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

No. 11-6362

THOMAS M. TULLY,

Petitioner - Appellant,

v.

GENE JOHNSON, Director, Virginia Department of Corrections,

Respondent - Appellee.

Appeal from the United States District Court for the Eastern

District of Virginia, at Richmond. James R. Spencer, Chief

District Judge. (3:10-cv-00299-JRS)

Submitted: August 30, 2011 Decided: September 2, 2011

Before SHEDD, DUNCAN, and DAVIS, Circuit Judges.

Dismissed by unpublished per curiam opinion.

Thomas M. Tully, Appellant Pro Se. Donald Eldridge Jeffrey, III,

Assistant Attorney General, Richmond, Virginia, for Appellee.

Unpublished opinions are not binding precedent in this circuit.

PER CURIAM: Thomas M. Tully seeks to appeal the district court's order denying relief on his 28U.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)(A) (2006). A certificate of appealability will not issue absent "a substantial showing of the denial of a constitutional right." 28U.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, as here, 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 Tully has not made the requisite showing. Accordingly, we deny a certificate of appealability and dismiss the appeal. We deny Tully's motions to schedule and participate in oral argument and to appoint counsel. 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.