Carl Lockhart v. David Ballard, No. 13-7567 (4th Cir. 2013)

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UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 13-7567 CARL E. LOCKHART, Petitioner - Appellant, v. DAVID BALLARD, Warden, Mt. Olive Correctional Complex, Respondent - Appellee. Appeal from the United States District Court for the Southern District of West Virginia, at Parkersburg. John T. Copenhaver, Jr., District Judge. (6:12-cv-04266) Submitted: December 17, 2013 Decided: December 20, 2013 Before KING, GREGORY, and WYNN, Circuit Judges. Dismissed by unpublished per curiam opinion. Carl E. Lockhart, Appellant Pro Se. Christopher S. Dodrill, OFFICE OF THE ATTORNEY GENERAL, Charleston, West Virginia, for Appellee. Unpublished opinions are not binding precedent in this circuit. PER CURIAM: Carl E. Lockhart seeks to appeal the district court s order accepting the recommendation of the magistrate judge and denying as untimely his 28 U.S.C. § 2254 (2006) petition. The order is not appealable unless a circuit justice or judge issues a certificate (2006). of appealability. 28 U.S.C. § 2253(c)(1)(A) 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) (2006). relief on the demonstrating district merits, that court s debatable or a prisoner reasonable assessment wrong. When the district court denies Slack satisfies jurists this would of the v. McDaniel, 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 Lockhart has not made the requisite showing. Accordingly, we deny a certificate of appealability, deny leave to proceed in forma pauperis, and dismiss the appeal. We dispense with oral argument because the facts and legal contentions are adequately 2 presented in the materials before this court and argument would not aid the decisional process. DISMISSED 3