Tony Johnson v. McKither Bodison

474 F. App'x 334

• Court: Court of Appeals for the Fourth Circuit
• Decided: June 12, 2012
• Docket: 10-6638A
• Status: Unpublished

Opinion

Affirmed by unpublished PER CURIAM opinion.

Unpublished opinions are not binding precedent in this circuit.

PER CURIAM:

Tony Stevenson Johnson appealed from the district court’s order adopting the report and recommendation of the magistrate judge and denying Johnson’s 28 U.S.C. § 2254 (2006) petition. While the district court granted a certificate of ap-pealability (“COA”) as to all issues raised by Johnson, we overlooked this fact in our initial consideration of this appeal. Finding that Johnson had not made a substantial showing of the denial of a constitutional right on appeal, we denied a COA and dismissed the appeal.

Johnson filed a petition for a writ of certiorari in the Supreme Court. The Supreme Court granted certiorari, vacated this Court’s judgment, and remanded for consideration of Gonzalez v. Thaler, — U.S.-, 132 S.Ct. 641, 181 L.Ed.2d 619 (2012). Johnson v. Bodison, — U.S. -, 182 S.Ct. 1088, 181 L.Ed.2d 973 (2012). In Gonzalez, the Supreme Court ruled that the specificity requirements of 28 U.S.C. § 2253(c)(2) (2006) were not jurisdictional and that an appeal may proceed based even upon a defective COA. 132 S.Ct. at 652. Because our procedural ruling was not based upon any finding that the district court’s COA was defective, we conclude that the ruling in Gonzalez has no effect on our consideration of the case.

On remand, we have examined the case anew on its merits, considering the record as well as Johnson’s arguments on appeal, and we find no reversible error. With regard to certain claims, Johnson fails to challenge dispositive legal and factual findings by the district court in his informal brief and, thus, has forfeited review. 4th Cir. R. 34(b). With regard to the remaining claims, after a careful review of the record, we affirm for the reasons stated in the magistrate judge’s opinion, as adopted by the district court. Johnson v. Bodison, No. 6:09-cv-01037-TLW, 2010 WL 1346369 (D.S.C. Mar. 30, 2010). We deny Johnson’s petition for rehearing and for rehearing en banc. 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.

AFFIRMED.