James Pipes v. David Ballard


UNPUBLISHED PER CURIAM OPINION filed.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]

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James Pipes v. David Ballard Doc. 0 Case: 09-6771 Document: 15 Date Filed: 09/16/2010 Page: 1 UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 09-6771 JAMES FRANKLIN PIPES, Petitioner Appellant, v. DAVID BALLARD, Warden, Respondent Appellee,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 Dismissed by unpublished per curiam opinion.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 Unpublished opinions are not binding precedent in this circuit.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, 2 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 3

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