David Munday v. Warden David Ballard, No. 13-7276 (4th Cir. 2013)

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UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 13-7276 DAVID EUGENE MUNDAY, Petitioner - Appellant, v. WARDEN DAVID BALLARD, Respondent - Appellee.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. (5:12-cv-00135-FPS-DJJ) Submitted: November 7, 2013 Decided: December 4, 2013 Before WYNN, FLOYD, and THACKER, Circuit Judges. Dismissed by unpublished per curiam opinion. David Eugene Munday, 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 Robert David Goldberg, Assistant Attorney General, Charleston, West Virginia, for Appellee Unpublished opinions are not binding precedent in this circuit.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: David court s Eugene order Munday 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)(A) (2006). issue absent a A certificate of appealability will not substantial constitutional right. See 28 U.S.C. 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. Slack, 529 U.S. at 484-85. We have independently reviewed the record and conclude that Munday 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