Bailey v. McBride

Filing 920070123

Opinion

UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT

No. 06-7477

HERMAN BAILEY, Petitioner - Appellant, versus THOMAS MCBRIDE, Warden, Respondent - Appellee.

Appeal from the United States District Court for the Southern District of West Virginia, at Parkersburg. Joseph Robert Goodwin, District Judge. (6:05-cv-00249)

Submitted: January 18, 2007

Decided:

January 23, 2007

Before WILKINSON, TRAXLER, and GREGORY, Circuit Judges.

Dismissed by unpublished per curiam opinion.

Herman Bailey, Appellant Pro Se. Darrell V. McGraw, Jr., Dawn Ellen Warfield, Robert David Goldberg, OFFICE OF THE ATTORNEY GENERAL OF WEST VIRGINIA, Charleston, West Virginia, for Appellee.

Unpublished opinions are not binding precedent in this circuit.

PER CURIAM: Herman Bailey, a state prisoner, 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 (2000) petition. judge The order is not appealable unless a circuit justice or a certificate of appealability. 28 U.S.C.

issues

§ 2253(c)(1) (2000). 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) (2000). A prisoner satisfies this

standard by demonstrating that reasonable jurists would find that his constitutional claims are debatable and that any dispositive procedural rulings by the district court are also debatable or wrong. See Miller-El v. Cockrell, 537 U.S. 322, 336 (2003);

Slack v. McDaniel, 529 U.S. 473, 484 (2000); Reid v. Angelone, 369 F.3d 363, 371 (4th Cir. 2004); Rose v. Lee, 252 F.3d 676, 683 (4th Cir. 2001). We have independently reviewed the record and conclude that Bailey has not made the requisite showing. Accordingly, we

deny leave to proceed in forma pauperis, deny a certificate of appealability, and dismiss the appeal. We dispense with oral

argument because the facts and legal contentions are adequately presented in the materials before the court and argument would not aid the decisional process.

DISMISSED

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