Dana Smith v. David Ballard, No. 10-7464 (4th Cir. 2011)

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UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 10-7464 DANA DECEMBER SMITH, Petitioner - Appellant, v. DAVID BALLARD, Warden, Mt. Olive Correctional Complex, Respondent Appellee, GEORGE CASTELLE, Interested Party Party in Interest. Appeal from the United States District Court for the Southern District of West Virginia, at Charleston. Joseph R. Goodwin, Chief District Judge. (2:09-cv-00242) Submitted: March 4, 2011 Decided: April 8, 2011 Before WILKINSON, NIEMEYER, and SHEDD, Circuit Judges. Dismissed by unpublished per curiam opinion. Dana December Smith, Appellant Pro Se. Robert David Goldberg, Assistant Attorney General, Charleston, West Virginia, for Appellee. Unpublished opinions are not binding precedent in this circuit. PER CURIAM: Dana court s December order Smith adopting the seeks to appeal magistrate the judge s district report and recommendation 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. § 2253(c)(1) (2006). issue absent a See 28 U.S.C. A certificate of appealability will not substantial constitutional right. showing of the denial 28 U.S.C. § 2253(c)(2) (2006). of a 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 that Slack, We have independently reviewed the record Smith has not made the requisite showing. Accordingly, we deny a certificate of appealability and dismiss the appeal. We deny Smith s motion for appointment of counsel. We with dispense oral argument 2 because the facts and legal contentions are adequately presented in the materials before the court and argument would not aid the decisional process. DISMISSED 3

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