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  • Kirby v. Johnson, 4th Cir. (2005)

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    This document is an unpublished opinion from the United States Court of Appeals for the Fourth Circuit dismissing an appeal from John Powhatan Kirby, a Virginia prisoner seeking relief under 28 U.S.C. § 2254. The Court of Appeals independently reviewed the record and determined that Kirby did not make a substantial showing that he was denied a constitutional right, as required to issue a certificate of appealability. As such, the Court dismissed Kirby's appeal and also denied his pending motion to strike testimony from the record.

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    Filed: 2005-07-27 Precedential Status: Non-Precedential Docket: 05-6657

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    This document is an unpublished opinion from the United States Court of Appeals for the Fourth Circuit dismissing an appeal from John Powhatan Kirby, a Virginia prisoner seeking relief under 28 U.S.C. § 2254. The Court of Appeals independently reviewed the record and determined that Kirby did not make a substantial showing that he was denied a constitutional right, as required to issue a certificate of appealability. As such, the Court dismissed Kirby's appeal and also denied his pending motion to strike testimony from the record.

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    Kirby v. Johnson, 4th Cir. (2005)

    Uploaded by

    Scribd Government Docs
    This document is an unpublished opinion from the United States Court of Appeals for the Fourth Circuit dismissing an appeal from John Powhatan Kirby, a Virginia prisoner seeking relief under 28 U.S.C. § 2254. The Court of Appeals independently reviewed the record and determined that Kirby did not make a substantial showing that he was denied a constitutional right, as required to issue a certificate of appealability. As such, the Court dismissed Kirby's appeal and also denied his pending motion to strike testimony from the record.

    Copyright:

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    of 2

    UNPUBLISHED

    UNITED STATES COURT OF APPEALS


    FOR THE FOURTH CIRCUIT

    No. 05-6657

    JOHN POWHATAN KIRBY,


    Petitioner - Appellant,
    versus
    GENE M. JOHNSON, Director, Virginia Department
    of Corrections,
    Respondent - Appellee.

    Appeal from the United States District Court for the Western
    District of Virginia, at Roanoke. Michael F. Urbanski, Magistrate
    Judge. (CA-04-579-7)

    Submitted:

    July 14, 2005

    Decided:

    July 27, 2005

    Before WILKINSON, LUTTIG, and MOTZ, Circuit Judges.

    Dismissed by unpublished per curiam opinion.

    John Powhatan Kirby, Appellant Pro Se. John H. McLees, Jr., 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:
    John Powhatan Kirby, a Virginia prisoner, seeks to appeal
    the district courts order denying relief on 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

    certificate

    of

    appealability.

    28

    U.S.C.

    2253(c)(1) (2000). A certificate of appealability will not issue


    for claims addressed by a district court absent a substantial
    showing of the denial of a constitutional right.

    2253(c)(2)

    (2000).

    prisoner

    satisfies

    this

    28 U.S.C.
    standard

    by

    demonstrating that reasonable jurists would find both 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 (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 Kirby has not made the requisite showing.
    Accordingly, we deny a certificate of appealability and dismiss the
    appeal.

    We deny Kirbys pending motion to strike testimony from

    the record.

    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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