James Pipes v. David Ballard

Filing 920100428

UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT

No. 10-6029

JAMES FRANKLIN PIPES, Petitioner ­ Appellant, v. DAVID BALLARD, Warden, Respondent ­ Appellee.

Appeal from the United States District Court for the Northern District of West Virginia, at Elkins. Robert E. Maxwell, Senior District Judge. (2:09-cv-00037-REM-JSK)

Submitted:

April 22, 2010

Decided:

April 28, 2010

Before TRAXLER, Chief Judge, and KING and AGEE, Circuit Judges.

Dismissed by unpublished per curiam opinion.

James Franklin Pipes, Appellant Pro Se. Deputy Attorney General, Charleston, Appellee.

Dawn Ellen Warfield, West Virginia, for

Unpublished opinions are not binding precedent in this circuit.

PER CURIAM: James court's judge order Franklin accepting Pipes the on seeks to appeal of the the district

recommendation Pipes' 28

magistrate (2006)

and

denying

relief

U.S.C.

§ 2254

petition. or judge

The order is not appealable unless a circuit justice issues a certificate of appealability. 28 U.S.C.

§ 2253(c)(1) (2006). issue absent "a

A certificate of appealability will not showing of the denial A of a

substantial 28

constitutional

right."

U.S.C.

§ 2253(c)(2).

prisoner

satisfies this standard by demonstrating that reasonable jurists would find that any assessment of the constitutional claims by the district court is debatable or wrong and that any

dispositive procedural ruling by the district court is likewise debatable. Miller-El v. Cockrell, 537 U.S. 322, 336-38 (2003);

Slack v. McDaniel, 529 U.S. 473, 484-85 (2000); Rose v. Lee, 252 F.3d 676, 683-84 (4th Cir. 2001). We have independently

reviewed the record and conclude that Pipes has not made the requisite showing. certificate dispense of Accordingly, we deny Pipes' motion for a and dismiss the the appeal. and We legal

appealability oral argument

with

because

facts

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

DISMISSED 2