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  • Spears v. Director Dept Corr, 4th Cir. (2007)

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    The United States Court of Appeals for the Fourth Circuit dismissed Larry Spears' appeal of the district court's dismissal without prejudice of his 28 U.S.C. § 2254 habeas corpus petition. The district court had dismissed the petition because Spears failed to exhaust his state court remedies, which is required before filing a federal habeas petition. The Court of Appeals denied Spears' request for a certificate of appealability, finding that he did not make a substantial showing that his constitutional rights were denied.

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    Filed: 2007-10-26 Precedential Status: Non-Precedential Docket: 07-7072

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    The United States Court of Appeals for the Fourth Circuit dismissed Larry Spears' appeal of the district court's dismissal without prejudice of his 28 U.S.C. § 2254 habeas corpus petition. The district court had dismissed the petition because Spears failed to exhaust his state court remedies, which is required before filing a federal habeas petition. The Court of Appeals denied Spears' request for a certificate of appealability, finding that he did not make a substantial showing that his constitutional rights were denied.

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    Public Domain
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    4 views2 pages

    Spears v. Director Dept Corr, 4th Cir. (2007)

    Uploaded by

    Scribd Government Docs
    The United States Court of Appeals for the Fourth Circuit dismissed Larry Spears' appeal of the district court's dismissal without prejudice of his 28 U.S.C. § 2254 habeas corpus petition. The district court had dismissed the petition because Spears failed to exhaust his state court remedies, which is required before filing a federal habeas petition. The Court of Appeals denied Spears' request for a certificate of appealability, finding that he did not make a substantial showing that his constitutional rights were denied.

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    of 2

    UNPUBLISHED

    UNITED STATES COURT OF APPEALS


    FOR THE FOURTH CIRCUIT

    No. 07-7072

    LARRY DARNELL SPEARS,


    Petitioner - Appellant,
    versus
    DIRECTOR, DEPARTMENT OF CORRECTIONS; VIRGINIA
    PAROLE BOARD,
    Respondents - Appellees.

    Appeal from the United States District Court for the Eastern
    District of Virginia, at Alexandria.
    T. S. Ellis III, Senior
    District Judge. (1:07-cv-00596-TSE)

    Submitted:

    October 18, 2007

    Decided:

    October 26, 2007

    Before WILKINSON, NIEMEYER, and KING, Circuit Judges.

    Dismissed by unpublished per curiam opinion.

    Larry Darnell Spears, Appellant Pro Se.

    Unpublished opinions are not binding precedent in this circuit.

    PER CURIAM:
    Larry Darnell Spears seeks to appeal the district courts
    order dismissing his 28 U.S.C. 2254 (2000) petition without
    prejudice based upon his failure to exhaust state court remedies.
    The order is not appealable unless a circuit justice or judge
    issues a certificate of appealability.
    (2000).

    28 U.S.C. 2253(c)(1)

    A certificate of appealability will not issue absent a

    substantial showing of the denial of a constitutional right.


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

    that

    28

    A prisoner satisfies this standard by

    reasonable

    jurists

    would

    find

    that

    any

    assessment of the constitutional claims by the district court is


    debatable or wrong and that any dispositive procedural ruling by
    the district court is likewise debatable.

    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 Spears has not
    made the requisite showing.

    Accordingly, we deny a certificate of

    appealability and dismiss the appeal.

    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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