James Pipes v. David Ballard, No. 09-6771 (4th Cir. 2010)
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UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 09-6771 JAMES FRANKLIN PIPES, Petitioner Appellant, v. DAVID BALLARD, Warden, Respondent Appellee, and THOMAS L. MCBRIDE, Warden, Respondent. Appeal from the United States District Court for the Northern District of West Virginia, at Elkins. Robert E. Maxwell, Senior District Judge. (2:05-cv-00058-REM-JSK) Submitted: August 30, 2010 Decided: September 16, 2010 Before WILKINSON, NIEMEYER, and DAVIS, Circuit Judges. Dismissed by unpublished per curiam opinion. James Franklin Pipes, Appellant Pro Se. R. Christopher Smith, Dawn Ellen Warfield, Deputy Attorney General, Charleston, West Virginia, for Appellee. Unpublished opinions are not binding precedent in this circuit. PER CURIAM: James court s judge Franklin orders adopting and denying petition. justice The or the relief orders judge Pipes seeks to appeal recommendation on are his not issues a 28 of U.S.C. appealable the of district magistrate § 2254 unless certificate 28 U.S.C. § 2253(c)(1) (2006). the (2006) a circuit appealability. 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). 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 Cockrell, (2000); (2003). see Miller-El v. 537 U.S. 322, 336-38 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. 529 U.S. at 484-85. and conclude Accordingly, Pipes s that we motion We have independently reviewed the record Pipes deny for Slack, a has not made certificate appointment appeal. 2 of the of requisite showing. appealability, counsel, and dismiss deny the We dispense with oral argument because the facts and legal before contentions the court are adequately and argument presented would not in aid the the materials decisional process. DISMISSED 3
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