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Phan v. Braxton, 04-7665 (2005)

Court: Court of Appeals for the Fourth Circuit Number: 04-7665 Visitors: 24
Filed: Aug. 08, 2005
Latest Update: Mar. 28, 2017
Summary: UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 04-7665 THIET VAN PHAN, Petitioner - Appellant, versus DANIEL BRAXTON, Warden, Respondent - Appellee. No. 05-6187 THIET VAN PHAN, Petitioner - Appellant, versus DANIEL BRAXTON, Warden, Respondent - Appellee. Appeals from the United States District Court for the Eastern District of Virginia, at Richmond. David G. Lowe, Magistrate Judge. (CA-02-840) Submitted: July 15, 2005 Decided: August 8, 2005 Before MICHAEL and KING, Circui
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                             UNPUBLISHED

                   UNITED STATES COURT OF APPEALS
                       FOR THE FOURTH CIRCUIT


                             No. 04-7665



THIET VAN PHAN,

                                            Petitioner - Appellant,

          versus


DANIEL BRAXTON, Warden,

                                             Respondent - Appellee.


                             No. 05-6187



THIET VAN PHAN,

                                            Petitioner - Appellant,

          versus


DANIEL BRAXTON, Warden,

                                             Respondent - Appellee.


Appeals from the United States District Court for the Eastern
District of Virginia, at Richmond.  David G. Lowe, Magistrate
Judge. (CA-02-840)


Submitted:   July 15, 2005                 Decided:   August 8, 2005


Before MICHAEL and KING, Circuit Judges, and HAMILTON, Senior
Circuit Judge.
Dismissed by unpublished per curiam opinion.


Thiet Van Phan, 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Unpublished opinions are not binding precedent in this circuit.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).




                              - 2 -
PER CURIAM:

            In these consolidated appeals, Thiet Van Phan seeks to

appeal the magistrate judge’s orders denying relief on his petition

filed under 28 U.S.C. § 2254 (2000) and denying Phan’s motion for

reconsideration.    These orders are not appealable 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

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 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
, 683-84 (4th Cir. 2001).     We have independently reviewed the

record and conclude that Phan has not made the requisite showing.

Accordingly, we deny a certificate of appealability and dismiss the

appeals.     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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