Diane Fleming v. GENE M. JOHNSON, Director of the Virginia Department of Corrections

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 08-6356
DIANE FLEMING,
Petitioner - Appellant,
v.
GENE M. JOHNSON, Director of the Virginia Department of
Corrections,
Respondent - Appellee.
Appeal from the United States District Court for the Eastern
District of Virginia, at Norfolk. Jerome B. Friedman, District
Judge. (2:07-cv-00194-JBF-FBS)
Submitted: September 22, 2008 Decided: October 9, 2008
Before NIEMEYER, MICHAEL, and GREGORY, Circuit Judges.
Dismissed by unpublished per curiam opinion.
David Bernard Hargett, HARGETT & WATSON, PLC, Glen Allen, Virginia,
for Appellant. 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Unpublished opinions are not binding precedent in this circuit.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:
Diane Fleming seeks to appeal the district court’s order
accepting the recommendation of the magistrate judge and denying
relief on her 28 U.S.C. § 2254 (2000) petition. The order is not
appealable 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 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 that any assessment of the constitutional claims
by the district court is debatable or wrong and that any
dispositive procedural ruling by the district court is likewise
debatable. Miller-El v. Cockrell, 537 U.S. 322, 336-38 (2003);
Slack v. McDaniel, 529 U.S. 473, 484 (2000); Rose v. Lee, 252 F.3d
676, 683-84 (4th Cir. 2001). We have independently reviewed the
record and conclude that Fleming has not made the requisite
showing. Accordingly, we deny a certificate of appealability 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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