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WILKERSON v. Commonwealth of Virginia, Respondent. (2018)

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United States Court of Appeals, Fourth Circuit.

Norman Kevin WILKERSON, Petitioner-Appellant, v. Harold W. CLARKE, Dir. of VDOC, Respondent-Appellee, Commonwealth of Virginia, Respondent.

No. 17-7059

Decided: January 19, 2018

Before KEENAN and FLOYD, Circuit Judges, and HAMILTON, Senior Circuit Judge. Norman Kevin Wilkerson, Appellant Pro Se. Virginia Bidwell Theisen, Senior Assistant Attorney General, OFFICE OF THE ATTORNEY GENERAL OF VIRGINIA, Richmond, Virginia, for Appellee.

Norman Kevin Wilkerson seeks to appeal the district court's order accepting the recommendation of the magistrate judge and denying relief on his 28 U.S.C. § 2254 (2012) petition.* The order is not appealable unless a circuit justice or judge issues a certificate of appealability. See 28 U.S.C. § 2253(c)(1)(A) (2012).

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) (2012). When the district court denies relief on the merits, a prisoner satisfies this standard by demonstrating that reasonable jurists would find that the district court's assessment of the constitutional claims is debatable or wrong. Slack v. McDaniel, 529 U.S. 473, 484, 120 S.Ct. 1595, 146 L.Ed.2d 542 (2000); see Miller-El v. Cockrell, 537 U.S. 322, 336-38, 123 S.Ct. 1029, 154 L.Ed.2d 931 (2003). When the district court denies relief on procedural grounds, the prisoner must demonstrate both that the dispositive procedural ruling is debatable, and that the petition states a debatable claim of the denial of a constitutional right. Slack, 529 U.S. at 484-85, 120 S.Ct. 1595.

We have independently reviewed the record and conclude that Wilkerson has not made the requisite showing. Accordingly, we deny a certificate of appealability, deny leave to proceed in forma pauperis, deny the pending motions, and dismiss the appeal. We dispense with oral argument because the facts and legal contentions are adequately presented in the materials before this court and argument would not aid the decisional process.



FOOTNOTE.   Wilkerson has also filed a supplemental notice of appeal from the magistrate judge's earlier order denying his motion for release pending review. We may exercise jurisdiction only over final orders, and certain interlocutory and collateral orders, of the district court. See 28 U.S.C. §§ 1291, 1292 (2012). Except when a magistrate judge acts under 28 U.S.C. § 636(c) (2012), we lack jurisdiction over appeals from a magistrate judge's order. See United States v. Baxter, 19 F.3d 155, 156-57 (4th Cir. 1994).


Dismissed by unpublished per curiam opinion. Unpublished opinions are not binding precedent in this circuit.

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