Gary v. Hinkle
Opinion
Pakastan Algier Gary, a Virginia prisoner, seeks to appeal the district court’s order dismissing his petition filed under 28 U.S.C. § 2254 (2000) as successive. * An appeal may not be taken from the final order in a § 2254 proceeding unless a circuit justice or judge issues a certificate of appealability. 28 U.S.C. § 2253(c)(1) (2000). A certificate of appealability will not issue for claims addressed by a district court absent “a substantial showing of the denial of a constitutional right.” 28 U.S.C. § 2253(c)(2) (2000). A prisoner satisfies this standard by demonstrating that reasonable jurists would find both 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, 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 (4th Cir. 2001). We have independently reviewed the record and conclude that Gary has not made the requisite showing. Accordingly, we deny a certificate of appealability and dismiss the appeal. To the extent Gary’s notice of appeal and informal brief could be construed as a motion for authorization to file a successive § 2254 petition, we deny such authorization. See United States v. Winestock, 340 F.3d 200, 208 (4th Cir.), cert. denied, — U.S. -, 124 S.Ct. 496, 157 L.Ed.2d 395 (2003). 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
By order filed May 13, 2004, this appeal was placed in abeyance for Jones v. Braxton, No. 03-6891. In view of our recent decision in Reid v. Angelone, 369 F.3d 363 (4th Cir. 2004), we no longer find it necessary to hold this case in abeyance for Jones.
Reference
- Full Case Name
- Pakastan Algier GARY, Petitioner—Appellant, v. George HINKLE, Respondent—Appellee
- Cited By
- 1 case
- Status
- Unpublished