Cedeal Harper v. David Ballard, No. 13-6226 (4th Cir. 2013)
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UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 13-6226 CEDEAL T. HARPER, Petitioner - Appellant, v. DAVID BALLARD, Warden, Respondent - Appellee. Appeal from the United States District Court for the Southern District of West Virginia, at Huntington. Robert C. Chambers, Chief District Judge. (3:12-cv-00653) Submitted: May 30, 2013 Decided: June 5, 2013 Before SHEDD, DIAZ, and THACKER, Circuit Judges. Dismissed by unpublished per curiam opinion. Cedeal T. Harper, 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 Unpublished opinions are not binding precedent in this circuit.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: Cedeal T. Harper seeks to appeal the district court s order accepting the recommendation of the magistrate judge and dismissing without prejudice Harper s 28 U.S.C. § 2254 (2006) petition for failure to exhaust. unless a circuit appealability. justice or The order is not appealable judge issues a 28 U.S.C. § 2253(c)(1)(A) (2006). certificate of A certificate of appealability will not issue absent a substantial showing of the denial of a constitutional right. (2006). 28 U.S.C. § 2253(c)(2) When the district court denies relief on the merits, a prisoner satisfies this jurists would reasonable standard find by that demonstrating the district that court s assessment of the constitutional claims is debatable or wrong. Slack v. McDaniel, 529 U.S. 473, 484 (2000); see Miller-El v. Cockrell, 537 U.S. 322, 336-38 (2003). denies relief demonstrate both on procedural that the When the district court grounds, dispositive the prisoner procedural ruling must 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 Harper has not made the requisite showing. Accordingly, we deny Harper s motion for a certificate of appealability, and dismiss the appeal. facts and legal We dispense with oral argument because the contentions are 2 adequately presented in the materials before this court and argument would not aid the decisional process. DISMISSED 3
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