U.S. Court of Appeals for the Fourth Circuit, 2003

Newman v. Commonwealth of VA

Newman v. Commonwealth of VA
U.S. Court of Appeals for the Fourth Circuit · Decided August 20, 2003 · Williams, King, Gregory
71 F. App'x 273

Newman v. Commonwealth of VA

Opinion

PER CURIAM.

Abra Faith Newman seeks to appeal the district court’s order dismissing without prejudice her petition filed under 28 U.S.C. § 2254 (2000), and denying her motion for reconsideration. An appeal may not be taken from the final order in a *274 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 mil 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, 120 S.Ct. 1595, 146 L.Ed.2d 542 (2000)), cert. denied, 534 U.S. 941, 122 S.Ct. 318, 151 L.Ed.2d 237 (2001). We have independently reviewed the record and conclude that Newman has not made the requisite showing. See Miller-El v. Cockrell, 537 U.S. 322, 123 S.Ct. 1029, 1039, 154 L.Ed.2d 931 (2003). Accordingly, we deny a certificate of appealability, deny Newman’s motion for appointment of counsel, and dismiss the appeal. We deny as moot Newman’s motion to hold the appeal in abeyance. 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.

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