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156 F. App'x 607

Hill v. Johnson

U.S. Courts of Appeals

Decided December 5, 2005

U.S. Courts of Appeals · decided 2005-12-05

Applies 28 U.S.C. § 2253 (Antiterrorism and Effective Death Penalty Act of 1996) · 28 U.S.C. § 2254 (Antiterrorism and Effective Death Penalty Act of 1996)

Relies on Slack v. McDaniel · Miller-El v. Cockrell Director Texas Department of Criminal Justice Institutional Division · Cohen v. Beneficial Industrial Loan Corp.

Dismissed by unpublished PER CURIAM opinion · Decided 2005-12-05

PER CURIAM:

¶1 John Hill, a Virginia prisoner, seeks to appeal the district court’s order adopting the recommendation of a magistrate judge and dismissing his petition filed under 28 U.S.C. § 2254 (2000). * 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 *608 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 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 Hill has not made the requisite showing. Accordingly, we deny a certificate of appealability and dismiss the appeal. We also deny Hill’s motions for oral argument and appointment of counsel. We note that the facts and legal contentions are adequately presented in the materials before the court and argument would not aid the decisional process.

¶2 DISMISSED

*

¶3 Appeal number 05-6886 represents Hill's appeal from the magistrate judge’s recommendation. That recommendation did not constitute a final appealable order, however, and hence that appeal is dismissed as interlocutory. See Fed.R.Civ.P. 54(b); Cohen v. Beneficial Indus. Loan Corp., 337 U.S. 541, 69 S.Ct. 1221, 93 L.Ed. 1528 (1949).

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