Thomas M. Tully v. GENE JOHNSON, Director, Virginia Department of Corrections

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 12-6864
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, District
Judge. (3:10-cv-00299-JRS)
Submitted: November 13, 2012 Decided: November 15, 2012
Before NIEMEYER, GREGORY, and DIAZ, 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Dismissed by unpublished per curiam opinion.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Unpublished opinions are not binding precedent in this circuit.

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PER CURIAM:
Thomas M. Tully seeks to appeal the district court’s
order denying his Fed. R. Civ. P. 60(b) motions for
reconsideration of the district court’s order denying relief on
his 28 U.S.C. § 2254 (2006) petition. The order is not
appealable unless a circuit justice or judge issues a
certificate of appealability. 28 U.S.C. § 2253(c)(1)(A)
(2006); Reid v. Angelone, 369 F.3d 363, 369 (4th Cir. 2004).
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
(2000); see Miller-El v. Cockrell, 537 U.S. 322, 336-38 (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.
We have independently reviewed the record and conclude
that Tully has not made the requisite showing. Accordingly, we
deny a certificate of appealability, deny leave to proceed in

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forma pauperis, 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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