Wesley May v. David Ballard, No. 12-7882 (4th Cir. 2013)

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UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 12-7882 WESLEY MAY, Petitioner - Appellant, v. DAVID BALLARD, Warden, Respondent - Appellee.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. (5:11-cv-00082-FPS-JSK) Submitted: February 26, 2013 Decided: March 1, 2013 Before MOTZ, WYNN, and DIAZ, Circuit Judges. Dismissed by unpublished per curiam opinion. Wesley M. May, Appellant Pro Se. Robert David Goldberg, Assistant Attorney General, 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 Unpublished opinions are not binding precedent in this circuit.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: Wesley May 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. not appealable unless a circuit certificate of appealability. A certificate of justice or The order is judge issues a 28 U.S.C. § 2253(c)(1)(A) (2006). appealability will not issue absent a substantial showing of the denial of a constitutional right. 28 U.S.C. § 2253(c)(2) (2006). relief on the demonstrating district merits, that court s debatable or a prisoner reasonable assessment wrong. When the district court denies satisfies jurists would of the v. McDaniel, Slack this standard find constitutional 529 U.S. by that the claims 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 484-85. We have independently reviewed the record and conclude that May has not made the requisite showing. Accordingly, we deny a certificate of appealability and dismiss the appeal. dispense with oral argument because 2 the facts and We legal contentions are adequately presented in the materials before this court and argument would not aid the decisional process. DISMISSED 3