U.S. Court of Appeals for the Fourth Circuit, 2011

Brian Strebe v. Gene Johnson

Brian Strebe v. Gene Johnson
U.S. Court of Appeals for the Fourth Circuit · Decided June 21, 2011 · Niemeyer, Gregory, Hamilton
435 F. App'x 235

Brian Strebe v. Gene Johnson

Opinion

Dismissed by unpublished PER CURIAM opinion.

Unpublished opinions are not binding precedent in this circuit.

PER CURIAM:

Brian David Strebe seeks to appeal the district court’s orders denying relief on his 28 U.S.C. § 2254 (2006) petition and denying reconsideration. The orders are 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.” 28 U.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, 120 S.Ct. 1595, 146 L.Ed.2d 542 (2000); see Miller-El v. Cockrell, 537 U.S. 322, 336-38, 123 S.Ct. 1029, 154 L.Ed.2d 931 (2003). When 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, 120 S.Ct. 1595. We have independently *236 reviewed the record and conclude that Strebe has not made the requisite showing. Accordingly, we deny a certificate of appealability, deny Strebe’s motion to appoint counsel, 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.

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