Brian Ashcraft v. David Ballard, No. 10-7706 (4th Cir. 2011)
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UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 10-7706 BRIAN E. ASHCRAFT, Petitioner - Appellant, v. DAVID BALLARD, Warden, Respondent Appellee. Appeal from the United States District Court for the Northern District of West Virginia, at Elkins. John Preston Bailey, Chief District Judge. (2:10-cv-00011-JPB-DJJ) Submitted: May 26, 2011 Decided: May 31, 2011 Before KING, SHEDD, and DIAZ, Circuit Judges. Dismissed by unpublished per curiam opinion. Brian E. Ashcraft, Appellant Pro Se. Silas B. Taylor, OFFICE OF THE ATTORNEY GENERAL OF WEST VIRGINIA, Charleston, West Virginia, for Appellee. Unpublished opinions are not binding precedent in this circuit. PER CURIAM: Brian E. Ashcraft seeks to appeal the district court s order accepting the recommendation of the magistrate judge and dismissing as untimely his 28 U.S.C. § 2254 (2006) petition. The order is not appealable unless a circuit justice or judge issues a certificate of appealability. (2006). 28 U.S.C. § 2253(c)(1) 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)(A) (2006). When the district court denies relief on the merits, a prisoner satisfies this standard by demonstrating that reasonable jurists would find that the district debatable court s or assessment wrong. Slack of the constitutional v. McDaniel, 529 claims U.S. 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 Accordingly, We have Ashcraft we deny independently has the not reviewed made motion the for record requisite a and showing. certificate of appealability and the motion for appeal counsel, and dismiss the appeal. legal We dispense with oral argument because the facts and contentions are adequately 2 presented in the materials before the court and argument would not aid the decisional process. DISMISSED 3
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