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Gary v. Hinkle, 04-6319 (2004)

Court: Court of Appeals for the Fourth Circuit Number: 04-6319 Visitors: 15
Filed: Jul. 14, 2004
Latest Update: Feb. 12, 2020
Summary: UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 04-6319 PAKASTAN ALGIER GARY, Petitioner - Appellant, versus GEORGE HINKLE, Respondent - Appellee. Appeal from the United States District Court for the Eastern District of Virginia, at Norfolk. Rebecca Beach Smith, District Judge. (CA-04-30-2) Submitted: July 2, 2004 Decided: July 14, 2004 Before WIDENER, TRAXLER, and GREGORY, Circuit Judges. Dismissed by unpublished per curiam opinion. Pakastan Algier Gary, Appellant Pro Se.
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                            UNPUBLISHED

                   UNITED STATES COURT OF APPEALS
                       FOR THE FOURTH CIRCUIT


                            No. 04-6319



PAKASTAN ALGIER GARY,

                                           Petitioner - Appellant,

          versus


GEORGE HINKLE,

                                            Respondent - Appellee.



Appeal from the United States District Court for the Eastern
District of Virginia, at Norfolk. Rebecca Beach Smith, District
Judge. (CA-04-30-2)


Submitted:   July 2, 2004                  Decided:   July 14, 2004


Before WIDENER, TRAXLER, and GREGORY, Circuit Judges.


Dismissed by unpublished per curiam opinion.


Pakastan Algier Gary, Appellant Pro Se.


Unpublished opinions are not binding precedent in this circuit.
See Local Rule 36(c).
PER CURIAM:

                 Pakastan Algier Gary, a Virginia prisoner, seeks to

appeal the district court’s order dismissing his petition filed

under 28 U.S.C. § 2254 (2000) as successive.*                   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 appealability will not issue

for claims addressed by a district court 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 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 Gary has not made the requisite showing.

Accordingly, we deny a certificate of appealability and dismiss the

appeal.          To the extent Gary’s notice of appeal and informal brief

could       be    construed   as    a    motion    for    authorization       to   file    a

successive § 2254 petition, we deny such authorization. See United



        *
      By order filed May 13, 2004, this appeal was placed in
abeyance for Jones v. Braxton, No. 03-6891. In view of our recent
decision in Reid v. Angelone, 
369 F.3d 363
(4th Cir. 2004), we no
longer find it necessary to hold this case in abeyance for Jones.

                                           - 2 -
States v. Winestock, 
340 F.3d 200
, 208 (4th Cir.), cert. denied,

124 S. Ct. 496
(2003).       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




                                     - 3 -

Source:  CourtListener

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