Albritton v. Johnson

                                UNPUBLISHED

                    UNITED STATES COURT OF APPEALS
                        FOR THE FOURTH CIRCUIT


                                No. 09-6216


DEVINCHE J. ALBRITTON,

                  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. (2:08-cv-00086-JBF-FBS)


Submitted:    August 26, 2009                  Decided: September 1, 2009


Before TRAXLER,     Chief   Circuit   Judge,    and    GREGORY   and   SHEDD,
Circuit Judges.


Dismissed by unpublished per curiam opinion.


DeVinche Albritton, Appellant Pro Se.          Virginia Bidwell Theisen,
Senior Assistant Attorney General,             Richmond, Virginia, for
Appellee.


Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:

             DeVinche           J.   Albritton         seeks     to    appeal      the     district

court’s    order       accepting          the     recommendation        of     the    magistrate

judge     and    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) (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).         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 grant

Albritton’s motion to amend and supplement his appeal.                                      We have

independently reviewed the record and conclude that Albritton

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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