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241 F. App'x 990

Franco v. Johnson

U.S. Courts of Appeals

Decided September 19, 2007

U.S. Courts of Appeals · decided 2007-09-19

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) · 28 U.S.C. § 636

Relies on Slack v. McDaniel · Miller-El v. Cockrell Director Texas Department of Criminal Justice Institutional Division · Rose v. Lee

Dismissed by unpublished PER CURIAM opinion · Decided 2007-09-19

PER CURIAM:

¶1 Darryl Lancaster Cherry seeks to appeal the magistrate judge’s order denying relief on his 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 ap *991 pealability will not issue absent “a substantial showing of the denial of a constitutional right.” 28 U.S.C. § 2258(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 dis-positive procedural ruling by the district court is likewise debatable. Miller-El v. Cockrell, 537 U.S. 322, 336-38, 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, 683-84 (4th Cir.2001). We have independently reviewed the record and conclude that Cherry 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.

¶2 DISMISSED.

*

¶3 The case was decided by a magistrate judge with the parties’ consent. 28 U.S.C. § 636(c) (2000).

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