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  • Hester v. Thomas, 4th Cir. (2011)

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    Kenneth Thomas Hester sought to appeal the district court's denial of his Rule 59(e) motion for reconsideration of the denial of his 28 U.S.C. § 2254 habeas corpus petition. The Fourth Circuit dismissed the appeal, finding that Hester did not make the requisite showing that reasonable jurists would find the district court's assessment of his constitutional claims debatable or wrong. Specifically, the court found that Hester did not demonstrate that the district court's procedural ruling denying his motion was debatable or that his petition stated a debatable claim of the denial of a constitutional right, as required to issue a certificate of appealability.

    Original Description:

    Filed: 2011-03-03 Precedential Status: Non-Precedential Docket: 10-7678

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    Kenneth Thomas Hester sought to appeal the district court's denial of his Rule 59(e) motion for reconsideration of the denial of his 28 U.S.C. § 2254 habeas corpus petition. The Fourth Circuit dismissed the appeal, finding that Hester did not make the requisite showing that reasonable jurists would find the district court's assessment of his constitutional claims debatable or wrong. Specifically, the court found that Hester did not demonstrate that the district court's procedural ruling denying his motion was debatable or that his petition stated a debatable claim of the denial of a constitutional right, as required to issue a certificate of appealability.

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    Public Domain
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    6 views3 pages

    Hester v. Thomas, 4th Cir. (2011)

    Uploaded by

    Scribd Government Docs
    Kenneth Thomas Hester sought to appeal the district court's denial of his Rule 59(e) motion for reconsideration of the denial of his 28 U.S.C. § 2254 habeas corpus petition. The Fourth Circuit dismissed the appeal, finding that Hester did not make the requisite showing that reasonable jurists would find the district court's assessment of his constitutional claims debatable or wrong. Specifically, the court found that Hester did not demonstrate that the district court's procedural ruling denying his motion was debatable or that his petition stated a debatable claim of the denial of a constitutional right, as required to issue a certificate of appealability.

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    of 3

    UNPUBLISHED

    UNITED STATES COURT OF APPEALS


    FOR THE FOURTH CIRCUIT

    No. 10-7678

    KENNETH THOMAS HESTER,


    Petitioner - Appellant,
    v.
    SUPERINTENDENT SANDRA THOMAS,
    Respondent - Appellee.

    Appeal from the United States District Court for the Eastern
    District of North Carolina, at Raleigh.
    Terrence W. Boyle,
    District Judge. (5:09-hc-02007-BO)

    Submitted:

    February 24, 2011

    Decided:

    March 3, 2011

    Before GREGORY, SHEDD, and KEENAN, Circuit Judges.

    Dismissed by unpublished per curiam opinion.

    Kenneth Thomas Hester, Appellant Pro Se.


    Mary Carla Hollis,
    Assistant
    Attorney
    General,
    Raleigh,
    North
    Carolina,
    for
    Appellee.

    Unpublished opinions are not binding precedent in this circuit.

    PER CURIAM:
    Kenneth
    courts

    order

    Thomas

    denying

    Hester

    his

    Fed.

    seeks
    R.

    to

    appeal

    Civ.

    P.

    the

    59(e)

    district

    motion

    for

    reconsideration of the district courts order denying relief on


    his

    28

    U.S.C.

    appealable

    2254

    unless

    (2006)

    petition.

    circuit

    justice

    certificate of appealability.
    Reid

    v.

    Angelone,

    A certificate

    of

    369

    The
    or

    order

    judge

    is

    issues

    not
    a

    28 U.S.C. 2253(c)(1) (2006);

    F.3d

    363,

    appealability

    369

    will

    (4th

    not

    Cir.

    issue

    2004).

    absent

    substantial showing of the denial of a constitutional right.


    28 U.S.C. 2253(c)(2) (2006).
    relief

    on

    the

    demonstrating
    district
    debatable

    merits,
    that

    courts
    or

    When the district court denies

    prisoner

    reasonable

    assessment

    wrong.

    Slack

    satisfies

    jurists

    this

    would

    of

    the

    v.

    McDaniel,

    standard

    find

    constitutional
    529

    U.S.

    by

    that

    the

    claims

    is

    473,

    484

    (2000); see Miller-El v. Cockrell, 537 U.S. 322, 336-38 (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

    the

    484-85.

    conclude

    that

    We

    have

    Hester

    independently
    has

    not

    made

    reviewed
    the

    record

    requisite

    and

    showing.

    Accordingly, we deny a certificate of appealability and dismiss


    the appeal.

    We dispense with oral argument because the facts


    2

    and legal contentions are adequately presented in the materials


    before

    the

    court

    and

    argument

    would

    not

    aid

    the

    decisional

    process.
    DISMISSED

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