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  • Herbin v. Angelone, 4th Cir. (2004)

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    This document is an unpublished opinion from the United States Court of Appeals for the Fourth Circuit dismissing Jervon Herbin's appeal of the district court's denial of his Rule 60(b) motion filed in his 28 U.S.C. § 2254 habeas action. The court finds that Herbin did not make the requisite showing to obtain a certificate of appealability, as he did not demonstrate the denial of a constitutional right or that reasonable jurists would debate the procedural rulings of the district court. The court also denies Herbin authorization to file a successive § 2254 petition and dispenses with oral argument.

    Original Description:

    Filed: 2004-10-21 Precedential Status: Non-Precedential Docket: 04-7034

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    This document is an unpublished opinion from the United States Court of Appeals for the Fourth Circuit dismissing Jervon Herbin's appeal of the district court's denial of his Rule 60(b) motion filed in his 28 U.S.C. § 2254 habeas action. The court finds that Herbin did not make the requisite showing to obtain a certificate of appealability, as he did not demonstrate the denial of a constitutional right or that reasonable jurists would debate the procedural rulings of the district court. The court also denies Herbin authorization to file a successive § 2254 petition and dispenses with oral argument.

    Copyright:

    Public Domain
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    13 views3 pages

    Herbin v. Angelone, 4th Cir. (2004)

    Uploaded by

    Scribd Government Docs
    This document is an unpublished opinion from the United States Court of Appeals for the Fourth Circuit dismissing Jervon Herbin's appeal of the district court's denial of his Rule 60(b) motion filed in his 28 U.S.C. § 2254 habeas action. The court finds that Herbin did not make the requisite showing to obtain a certificate of appealability, as he did not demonstrate the denial of a constitutional right or that reasonable jurists would debate the procedural rulings of the district court. The court also denies Herbin authorization to file a successive § 2254 petition and dispenses with oral argument.

    Copyright:

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    of 3

    UNPUBLISHED

    UNITED STATES COURT OF APPEALS


    FOR THE FOURTH CIRCUIT

    No. 04-7034

    JERVON L. HERBIN,
    Petitioner - Appellant,
    versus
    RONALD J. ANGELONE, Director, Department of
    Corrections,
    Respondent - Appellee.

    Appeal from the United States District Court for the Eastern
    District of Virginia, at Alexandria. James C. Cacheris, Senior
    District Judge. (CA-00-1630-A)

    Submitted: October 14, 2004

    Decided:

    October 21, 2004

    Before MOTZ, TRAXLER, and SHEDD, Circuit Judges.

    Dismissed by unpublished per curiam opinion.

    Jervon L. Herbin, Appellant Pro Se. Eugene Paul Murphy, OFFICE OF


    THE ATTORNEY GENERAL OF VIRGINIA, Richmond, Virginia, for Appellee.

    Unpublished opinions are not binding precedent in this circuit.


    See Local Rule 36(c).

    PER CURIAM:
    Jervon L. Herbin seeks to appeal the district courts
    order denying relief on his Fed. R. Civ. P. 60(b) motion filed in
    his 28 U.S.C. 2254 (2000) action.
    unless

    circuit

    appealability.

    justice

    or

    judge

    The order is not appealable


    issues

    certificate

    of

    28 U.S.C. 2253(c)(1) (2000); Reid v. Angelone,

    369 F.3d 363, 368-69 (4th Cir. 2004) (holding that appeal from the
    denial of a Rule 60(b) motion in a habeas action requires a
    certificate of appealability). A certificate of appealability will
    not

    issue

    absent

    substantial

    constitutional right.

    showing

    of

    the

    denial

    28 U.S.C. 2253(c)(2) (2000).

    of

    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,

    336-38 (2003); Slack v. McDaniel, 529 U.S. 473, 484 (2000); Rose v.
    Lee, 252 F.3d 676, 683 (4th Cir. 2001).

    We have independently

    reviewed the record and conclude that Herbin has not made the
    requisite showing.

    Accordingly, we deny Herbins motion for

    appointment of counsel, deny a certificate of appealability, and


    dismiss the appeal.
    To the extent Herbins notice of appeal and informal
    brief could be construed as a motion for authorization to file a
    successive 2254 petition, we deny such authorization.

    - 2 -

    United

    States v. Winestock, 340 F.3d 200, 208 (4th Cir.), cert. denied,
    124 S.Ct. 496 (2003).
    facts

    and

    materials

    legal
    before

    We dispense with oral argument because the

    contentions
    the

    court

    are

    adequately

    and

    argument

    presented

    would

    not

    in

    the

    aid

    the

    decisional process.

    DISMISSED

    - 3 -

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