Wayne Butts v. Harold Clarke

Filing

UNPUBLISHED PER CURIAM OPINION filed. Motion disposition in opinion--denying Motion to appoint/assign counsel [998847790-2]; denying Motion to proceed in forma pauperis (FRAP 24) [998833771-2]; denying Motion certificate of appealability (Local Rule 22(a)) [998832110-3] Originating case number: 2:11-cv-00420-MSD-FBS Copies to all parties and the district court/agency. [998906995]. Mailed to: Butts. [12-6497]

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UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT

No. 12-6497

WAYNE D. BUTTS,
Petitioner - Appellant,
v.
HAROLD
CLARKE,
Corrections,

Director

of

Virginia

Department

of

Respondent - Appellee.

Appeal from the United States District Court for the Eastern
District of Virginia, at Norfolk.
Mark S. Davis, District
Judge. (2:11-cv-00420-MSD-FBS)

Submitted:

July 26, 2012

Decided:

August 1, 2012

Before MOTZ, DAVIS, and FLOYD, Circuit Judges.

Dismissed by unpublished per curiam opinion.

Wayne D. Butts, Appellant Pro Se.
Rosemary Virginia Bourne,
OFFICE OF THE ATTORNEY GENERAL OF VIRGINIA, Richmond, Virginia,
for Appellee.

Unpublished opinions are not binding precedent in this circuit.

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PER CURIAM:
Wayne D. Butts 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 (2006) petition.

The

order is not appealable unless a circuit justice or judge issues
a

certificate

(2006).

of

appealability.

28

U.S.C.

§ 2253(c)(1)(A)

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) (2006).
relief

on

the

demonstrating
district

merits,
that

court’s

debatable

or

a

prisoner

reasonable

assessment

wrong.

When the district court denies

Slack

satisfies

jurists

this

would

of

the

v.

McDaniel,

standard

find

constitutional
529

U.S.

by

that

the

claims

is

473,

484

(2000); see Miller-El v. 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.

Slack, 529 U.S.

at 484-85.
We have independently reviewed the record and conclude
that Butts has not made the requisite showing.

Accordingly, we

deny a certificate of appealability, deny leave to proceed in
forma pauperis, and dismiss the appeal.
to appoint counsel.

We deny Butts’ motion

We dispense with oral argument because the
2

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facts

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and

materials

legal
before

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contentions

are

adequately

the

and

argument

court

presented

would

not

in

the

aid

the

decisional process.

DISMISSED

3