Carl Foy v. David Ballard, No. 09-6623 (4th Cir. 2009)

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UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 09-6623 CARL WAYNE FOY, Petitioner - Appellant, v. DAVID BALLARD, Warden, Mount Olive Correctional Complex, Respondent - Appellee. Appeal from the United States District Court for the Northern District of West Virginia, at Wheeling. Frederick P. Stamp, Jr., Senior District Judge. (5:08-cv-00042-FPS-JSK) Submitted: October 15, 2009 Decided: October 19, 2009 Before SHEDD, DUNCAN, and AGEE, Circuit Judges. Dismissed by unpublished per curiam opinion. George Lawson Partain, Logan, West Virginia, for Appellant. R. Christopher Smith, Charleston, West Virginia, Dawn Ellen Warfield, Deputy Attorney General, Charleston, West Virginia, for Appellee. Unpublished opinions are not binding precedent in this circuit. PER CURIAM: Carl Wayne Foy 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 (2006) petition. The order is not appealable unless a circuit justice or judge issues a certificate of appealability. A certificate of 28 U.S.C. § 2253(c)(1) (2006). appealability will not issue absent a substantial showing of the denial of a constitutional right. 28 U.S.C. standard § 2253(c)(2) by (2006). demonstrating that A prisoner reasonable satisfies jurists would this 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). conclude We that Accordingly, we have Foy independently has deny not Foy's made motion appealability and dismiss the appeal. reviewed the for the record requisite a and showing. certificate of 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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