James Pipes v. David Ballard

Filing

UNPUBLISHED PER CURIAM OPINION filed. Motion disposition in opinion--denying Motion to appoint/assign counsel [998101976-2] Originating case number: 2:05-cv-00058-REM-JSK Copies to all parties and the district court/agency. [998426177] [09-6771]

James Pipes v. David Ballard

Doc. 0

Case: 09-6771 Document: 15

Date Filed: 09/16/2010

Page: 1

UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 09-6771 JAMES FRANKLIN PIPES, Petitioner ­ Appellant, v. DAVID BALLARD, Warden, Respondent ­ Appellee, and THOMAS L. MCBRIDE, Warden, Respondent.

Appeal from the United States District Court for the Northern District of West Virginia, at Elkins. Robert E. Maxwell, Senior District Judge. (2:05-cv-00058-REM-JSK) Submitted: August 30, 2010 Decided: September 16, 2010

Before WILKINSON, NIEMEYER, and DAVIS, Circuit Judges. Dismissed by unpublished per curiam opinion. James Franklin Pipes, Appellant Pro Se. R. Christopher Smith, Dawn Ellen Warfield, Deputy Attorney General, Charleston, West Virginia, for Appellee. Unpublished opinions are not binding precedent in this circuit.

Dockets.Justia.com

Case: 09-6771 Document: 15

Date Filed: 09/16/2010

Page: 2

PER CURIAM: James court's judge orders and Franklin adopting Pipes the seeks to appeal of the the district

recommendation on not a his 28

magistrate (2006) circuit

denying The

relief are

U.S.C.

§ 2254 a

petition. justice or

orders

appealable

unless of

judge

issues

certificate

appealability.

28 U.S.C. § 2253(c)(1) (2006).

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). 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. 484 (2000); see Miller-El v. Slack v. McDaniel, 529 U.S. 473, 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. 529 U.S. at 484-85. and conclude that we Slack,

We have independently reviewed the record Pipes a has not made the of requisite showing. deny the

Accordingly, Pipes's appeal.

deny for

certificate of

appealability, and dismiss

motion

appointment

counsel,

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Case: 09-6771 Document: 15

Date Filed: 09/16/2010

Page: 3

We dispense with oral argument because the facts and legal before contentions the court are and adequately argument presented not in aid the the materials decisional

would

process. DISMISSED

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