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  • Foust v. Hall, 4th Cir. (2007)

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    1) Theodore Morris Foust sought to appeal a district court order denying his petition for habeas corpus relief under 28 U.S.C. § 2254. 2) A certificate of appealability is required to appeal the denial of habeas relief, which will not issue unless there is a substantial showing of the denial of a constitutional right. 3) The appeals court independently reviewed the record and determined that Foust did not make the requisite showing. The court therefore denied Foust's motions for a certificate of appealability and to proceed in forma pauperis, dismissing the appeal.

    Original Description:

    Filed: 2007-03-30 Precedential Status: Non-Precedential Docket: 06-8051

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    1) Theodore Morris Foust sought to appeal a district court order denying his petition for habeas corpus relief under 28 U.S.C. § 2254. 2) A certificate of appealability is required to appeal the denial of habeas relief, which will not issue unless there is a substantial showing of the denial of a constitutional right. 3) The appeals court independently reviewed the record and determined that Foust did not make the requisite showing. The court therefore denied Foust's motions for a certificate of appealability and to proceed in forma pauperis, dismissing the appeal.

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    Foust v. Hall, 4th Cir. (2007)

    Uploaded by

    Scribd Government Docs
    1) Theodore Morris Foust sought to appeal a district court order denying his petition for habeas corpus relief under 28 U.S.C. § 2254. 2) A certificate of appealability is required to appeal the denial of habeas relief, which will not issue unless there is a substantial showing of the denial of a constitutional right. 3) The appeals court independently reviewed the record and determined that Foust did not make the requisite showing. The court therefore denied Foust's motions for a certificate of appealability and to proceed in forma pauperis, dismissing the appeal.

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    UNPUBLISHED

    UNITED STATES COURT OF APPEALS


    FOR THE FOURTH CIRCUIT

    No. 06-8051

    THEODORE MORRIS FOUST,


    Petitioner - Appellant,
    versus
    JOSEPH HALL,
    Respondent - Appellee.

    Appeal from the United States District Court for the Middle
    District of North Carolina, at Durham. William L. Osteen, Senior
    District Judge. (1:06-cv-00439-WLO)

    Submitted:

    March 22, 2007

    Decided:

    March 30, 2007

    Before WIDENER and WILKINSON, Circuit Judges, and HAMILTON, Senior


    Circuit Judge.

    Dismissed by unpublished per curiam opinion.

    Theodore Morris Foust, Appellant Pro Se. Alvin William Keller,


    Jr., NORTH CAROLINA DEPARTMENT OF JUSTICE, Raleigh, North Carolina,
    for Appellee.

    Unpublished opinions are not binding precedent in this circuit.

    PER CURIAM:
    Theodore

    Morris

    Foust

    seeks

    to

    appeal

    the

    district

    courts order accepting the recommendation of the magistrate judge


    and 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).

    certificate of appealability will not issue absent a substantial


    showing of the denial of a constitutional right.

    2253(c)(2)

    demonstrating

    (2000).
    that

    prisoner

    reasonable

    satisfies

    jurists

    would

    this

    28 U.S.C.
    standard

    find

    that

    by
    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 Foust has not
    made the requisite showing.
    for

    certificate

    of

    Accordingly, we deny Fousts motions

    appealability,

    pauperis, and dismiss the appeal.

    and

    to

    proceed

    in

    forma

    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

    - 2 -

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