Dana Smith v. David Ballard

Filing

UNPUBLISHED PER CURIAM OPINION filed. Motion disposition in opinion--denying Motion to appoint/assign counsel [998456939-2]; denying Motion certificate of appealability (Local Rule 22(a)) [998455576-2] Originating case number: 2:09-cv-00242 Copies to all parties and the district court/agency. [998564039].. [10-7464]

Case: 10-7464

Document: 14

Date Filed: 04/08/2011

Page: 1

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT

No. 10-7464

DANA DECEMBER SMITH,
Petitioner - Appellant,
v.
DAVID BALLARD, Warden, Mt. Olive Correctional Complex,
Respondent – Appellee,
GEORGE CASTELLE,
Interested Party – Party in Interest.

Appeal from the United States District Court for the Southern
District of West Virginia, at Charleston.
Joseph R. Goodwin,
Chief District Judge. (2:09-cv-00242)

Submitted:

March 4, 2011

Decided:

April 8, 2011

Before WILKINSON, NIEMEYER, and SHEDD, Circuit Judges.

Dismissed by unpublished per curiam opinion.

Dana December Smith, Appellant Pro Se.
Robert David Goldberg,
Assistant Attorney General, Charleston, West Virginia, for
Appellee.

Unpublished opinions are not binding precedent in this circuit.

Case: 10-7464

Document: 14

Date Filed: 04/08/2011

Page: 2

PER CURIAM:
Dana
court’s

December

order

Smith

adopting

the

seeks

to

appeal

magistrate

the

judge’s

district

report

and

recommendation and denying relief on his 28 U.S.C. § 2254 (2006)
petition.

The order is not appealable unless a circuit justice

or judge issues a certificate of appealability.
§ 2253(c)(1) (2006).
issue

absent

“a

See 28 U.S.C.

A certificate of appealability will not

substantial

constitutional right.”

showing

of

the

denial

28 U.S.C. § 2253(c)(2) (2006).

of

a

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.

Slack v. McDaniel, 529 U.S. 473,

484

Cockrell,

(2000);

(2003).

see

Miller-El

v.

537

U.S.

322,

336-38

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

Slack,

We have independently reviewed the record
Smith

has

not

made

the

requisite

showing.

Accordingly, we deny a certificate of appealability and dismiss
the appeal.

We deny Smith’s motion for appointment of counsel.

We

with

dispense

oral

argument

2

because

the

facts

and

legal

Case: 10-7464

Document: 14

Date Filed: 04/08/2011

Page: 3

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

DISMISSED

3